Clement v. City of Glendale

• Decision Date: 11 March 2008
• Docket Number: No. 05-56692.,05-56692.
• Citation: 518 F.3d 1090
• Parties: Mary CLEMENT, Plaintiff-Appellant, v. CITY OF GLENDALE, Defendant, and J & E Service Inc., d/b/a Monterey Tow Service; J. Young, an individual, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

518 F.3d 1090

Mary CLEMENT, Plaintiff-Appellant, v. CITY OF GLENDALE, Defendant, and J & E Service Inc., d/b/a Monterey Tow Service; J. Young, an individual, Defendants-Appellees.

No. 05-56692.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 11, 2007.

Filed March 11, 2008.

Donald E. Chadwick, Northridge, CA, for the appellant.

Michael E. Sayer and Damian J. Nassiri, Claims Legal Management, APC, Irvine, CA, for the appellees.

Appeal from the United States District Court for the Central District of California; Florence Marie Cooper, District Judge, Presiding. D.C. No. CV-02-02555-FMC.

Before: ALEX KOZINSKI, Chief Judge, ANDREW J. KLEINFELD and RICHARD C. TALLMAN, Circuit Judges.

KOZINSKI, Chief Judge:

We determine the extent to which the Due Process Clause of the Fourteenth Amendment requires a state to provide notice before it may tow a vehicle parked in violation of state registration laws, if the owner has dutifully complied with an alternate form of registration.

Facts

Virginia Clement¹ lived in a residential hotel and parked her 1981 Cadillac Eldorado Biarritz in the hotel's parking lot. The car had not been driven in seven years and Clement did not keep the car's registration current. But she did dutifully complete an alternate form of vehicle registration, she had the hotel's permission to park there and the car was in its proper space. Without so much as a letter, a knock on the door, a note on her windshield or even a parking ticket, the Glendale police towed and impounded Clement's car. They left no clue to where it had gone. Only later did Clement discover that it had been towed for allegedly violating California vehicle registration laws.

The process started when Glendale police officer Young, on a routine patrol, noticed expired registration stickers on the car. He ran the plates and learned that Clement had filed a "planned non-operation" (PNO) certificate with the state DMV.² A PNO certificate allows vehicle owners to avoid paying for registration and insurance, so long as they don't drive on public roads or park in publicly accessible parking lots. Cal. Veh.Code § 4000(a)(1). California law authorizes local police to tow and impound PNO vehicles found in publicly accessible parking lots, and to release the vehicle only after it has been properly registered. Cal. Veh. Code § 22651(o). Officer Young ordered Clement's car towed because he believed the car was parked in a public lot in violation of the statute.³

After discovering what happened to her car, Clement did the American thing: She sued. Among other claims, she brought a civil rights action under 42 U.S.C. § 1983 against Officer Young and against the company that executed the tow, claiming that they violated her constitutional right to due process by impounding her car without giving her advance notice, and that they had unconstitutionally seized her car. The district court granted summary judgment to defendants on all of her claims. In a prior appeal, we reversed the district court's grant of summary judgment on her due process claim. Clement v. City of Glendale, 132 Fed.Appx. 147, 148 (9th Cir. 2005) (unpublished). On remand, the district court determined that Clement's constitutional right to due process required the police to try to notify her before impounding her car. The district court nevertheless granted summary judgment to Officer Young on the basis of qualified immunity and to the towing company based on a "good faith" defense. Clement appeals.

Analysis

1. No state may "deprive any person of life, liberty, or property, without due process of law."⁴ The courts have long interpreted this—along with the parallel restriction on the federal government in the Fifth Amendment—to require that notice generally be given before the government may seize property. See Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865 (1950) ("Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case."); see also Zinermon v. Burch, 494 U.S. 113, 132, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990) ("In situations where the State feasibly can provide a predeprivation hearing before taking property, it generally must do so regardless of the adequacy of a postdeprivation tort remedy to compensate for the taking."); Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) ("We have described the root requirement of the Due Process Clause as being that an individual be given an opportunity for a hearing before he is deprived of any significant property interest." (quotation marks omitted)). In other words, the government may not take property like a thief in the night; rather, it must announce its intentions and give the property owner a chance to argue against the taking.

Of course, there are numerous exceptions to this general rule: The government need not give notice in an emergency, nor if notice would defeat the entire point of the seizure, nor when the interest at stake is small relative to the burden that giving notice would impose. See, e.g., Zinermon, 494 U.S. at 132, 110 S.Ct. 975 ("[I]n situations where a predeprivation hearing is unduly burdensome in proportion to the liberty interest at stake . . . postdeprivation remedies might satisfy due process." (citation omitted)); Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (weighing "the fiscal and administrative burdens that [an] additional or substitute procedural requirement would entail"). Nevertheless, the default rule is advance notice and the state must present a strong justification for departing from the norm. The case here is close. Normally, of course, removal of an automobile is a big deal, as the absence of one's vehicle can cause serious disruption of life in twenty-first century America. See Scofield v. City of Hillsborough, 862 F.2d 759, 762 (9th Cir.1988) ("The uninterrupted use of one's vehicle [on public roads] is a significant and substantial private interest."). But Clement couldn't legally drive her car on public roads, nor does it appear that she was making offroad use of the vehicle.⁵ The car just sat in the parking lot, unused. Thus the owner's normal interest in continued use of his vehicle—as a means of getting from place to place—has no force here. Nor does there appear to be a significant risk of erroneous towing.⁶

However, having one's car towed, even one that's not operational, imposes significant costs and burdens on the car's owner. To begin with, there is no place for the police to leave notice that the car has been towed, so the owner suffers some anxiety when he discovers that the vehicle has mysteriously disappeared from its parking spot. Then, after discovering the car's new whereabouts, the owner will normally have to travel to the towing garage to retrieve it, which may involve significant cost for someone who doesn't have an operational vehicle to drive. And, of course, the garage won't release the car unless the owner pays towing, impound and storage fees.⁷

Imposition of these burdens and costs cannot be justified as a means of deterring illegal parking. The punishment for illegal parking is a fine, which is normally imposed by affixing a ticket to the windshield. A ticket can also serve as notice of the illegality and a warning that the car will be towed if not moved or properly registered. The costs and burdens on the car owner associated with a tow can only be justified by conditions that make a tow necessary and appropriate, such as that the car is parked in the path of traffic, blocking a driveway, obstructing a fire lane or appears abandoned. A tow may also be appropriate where there are no current registration stickers and police can't be sure that the owner won't move or hide the vehicle, rather than pay the fine for illegal parking. See Scofield, 862 F.2d at 764 (authorizing towing in cases where the state has no current information on the whereabouts of the owner because notice in such a case could allow the owner to abscond with the vehicle); see also Graff v. Nicholl, 370 F.Supp. 974, 983 (N.D.Ill. 1974) (requiring notice "only to those owners whose identity may be practicably ascertained"). In such situations the tow provides security for the payment of the fine—a sort of in rem arrest and bail procedure.

None of these circumstances are present here. As best the record reflects, the car was not blocking anyone's path and the owner of the parking lot—the hotel where Clement was staying—had given its consent. Nor was this a situation where the owner might conceal the car instead of paying the ticket: As Officer Young knew, Clement had a valid PNO certificate, which meant the DMV had a current address for her. And, as Officer Young could have figured out, had he bothered to make the effort, the address where the vehicle was registered was the very hotel in whose parking lot the car was parked. The chances that the car owner would abscond without paying any ticket the officer left on the windshield were very small indeed.⁸

The officer had several options open to him in these circumstances. He could have gone to the front desk of the hotel, asked to see the owner of the Eldorado Biarritz and told her personally that she needed to register the car or move it. This is what one might have expected from a conscientious public servant confronted with a car parked at the owner's dwelling. Short of that, the officer might have written a ticket and left it at the front desk of the hotel, with a verbal warning that the car had to be moved or registered—which the hotel clerk could have been expected to deliver with the ticket. Or, the officer could simply have written a ticket and left it...