Cooper v. City of Greenwood, Miss., Nos. 89-4396

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore WISDOM, POLITZ, and JOHNSON; POLITZ
Citation904 F.2d 302
PartiesEarl Roy COOPER, Plaintiff-Appellant, v. CITY OF GREENWOOD, MISSISSIPPI and Leflore County, Mississippi, Defendants-Appellees. Earl Roy COOPER, Plaintiff-Appellant, v. CITY OF GREENWOOD, MISSISSIPPI, Defendant-Appellee.
Decision Date29 June 1990
Docket Number89-4642,Nos. 89-4396

Page 302

904 F.2d 302
Earl Roy COOPER, Plaintiff-Appellant,
v.
CITY OF GREENWOOD, MISSISSIPPI and Leflore County,
Mississippi, Defendants-Appellees.
Earl Roy COOPER, Plaintiff-Appellant,
v.
CITY OF GREENWOOD, MISSISSIPPI, Defendant-Appellee.
Nos. 89-4396, 89-4642.
United States Court of Appeals,
Fifth Circuit.
June 29, 1990.
Rehearing and Rehearing En Banc
Denied Aug. 13, 1990.

Page 303

Estes & Waide, Jim Waide, Tupelo, Miss., for plaintiff-appellant.

Robert Lawson Holladay, Drew, Miss., for City of Greenwood.

Frederick B. Clark, Greenwood, Miss., for Leflore County.

Appeal from the United States District Court for the Northern District of Mississippi.

Page 304

Before WISDOM, POLITZ, and JOHNSON, Circuit Judges.

POLITZ, Circuit Judge:

Earl Roy Cooper appeals an adverse summary judgment rejecting his 42 U.S.C. Sec. 1983 suit against the City of Greenwood, Mississippi and Leflore County, Mississippi for the seizure and sale of a number of firearms Cooper assertedly owned but which, as a convicted felon, he could not legally possess. Cooper's attorney appeals the imposition of Fed.R.Civ.P. 11 sanctions. For the reasons assigned we reverse the summary judgment and vacate the imposition of sanctions.

Background

The Greenwood city police, assisted by Leflore County deputy sheriffs, executed a search warrant of an animal hospital and clinic owned by Cooper's son-in-law, seizing from the attic thereof 201 firearms. Cooper, a convicted felon, was indicted for receipt and possession of the firearms in violation of 18 U.S.C. Sec. 1202(a), now Sec. 922(g). Cooper was convicted on a guilty plea and was sentenced to a jail term. Thereafter the City of Greenwood, which had retained custody of the firearms, sold them at public auction, 1 and split the $30,000 proceeds received with Leflore County. It is undisputed that neither the city, the county nor the federal government sought or obtained court authorization to dispose of the firearms. The city and county authorities acted on their own.

Claiming ownership of the firearms, Cooper brought this action against the city and county, alleging violations of his fourth and fourteenth amendment rights, and seeking money damages of $30,000, a sum represented to be one-half the value of the firearms. The district court granted summary judgment to both defendants, dismissing Cooper's claims with prejudice. On motion it awarded $2500 in Rule 11 sanctions against Jim Waide, Cooper's attorney, for failing to make a reasonable investigation before filing suit on Cooper's behalf. Cooper and Waide timely appealed.

Analysis

1. Summary Judgment.

The issues presented on appeal are legal and are subject to plenary review. Netto v. Amtrak, 863 F.2d 1210 (5th Cir.1989). Cooper contends that he has a property interest in the firearms and thus was entitled to some measure of process prior to their disposition. Appellees maintain that Cooper lost whatever property interest he might have had when he was convicted of illegally possessing the firearms. Concluding that the firearms are not contraband per se, we hold that Cooper's claimed ownership interest in the firearms survived his criminal conviction and could not be extinguished without according him due process. 2

"The general rule is that seized property, other than contraband, should be returned to its rightful owner once the criminal proceedings have terminated." United States v. Farrell, 606 F.2d 1341, 1343 (D.C.Cir.1979) (quoting United States v. La Fatch, 565 F.2d 81, 83 (6th Cir.1977), cert. denied, 435 U.S. 971, 98 S.Ct. 1611, 56 L.Ed.2d 62 (1978)). Contraband is of two types: contraband per se and derivative contraband. Contraband per se consists of objects which are "intrinsically illegal in character," "the possession of which, without more, constitutes a crime." One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 699-700, 85 S.Ct. 1246, 1250, 14 L.Ed.2d 170 (1965). A typical example is cocaine, a controlled substance, the possession

Page 305

of which is unlawful under the Controlled Substances Act, 21 U.S.C. Secs. 801 et seq. Courts will not entertain a claim contesting the confiscation of contraband per se because one cannot have a property right in that which is not subject to legal possession. Id.; United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951), overruled on other grounds, Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).

By contrast, derivative contraband includes items which are not inherently unlawful but which may become unlawful because of the use to which they are put--for example, an automobile used in a bank robbery. One 1958 Plymouth Sedan. Because a property interest in derivative contraband is not extinguished automatically if the item is put to unlawful use, the forfeiture of such an item is permitted only as authorized by statute, Farrell, and such forfeitures are subject to scrutiny for compliance with the safeguards of procedural due...

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58 practice notes
  • City of N.Y. v. U.S. Postal Serv., 19-cv-5934 (BMC)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • 15 d1 Fevereiro d1 2021
    ...per se because one cannot have a property right in that which is not subject to legal possession." Id. (quoting Cooper v. Greenwood, 904 F.2d 302, 305 (5th Cir. 1990) ). In a civil forfeiture proceeding, the government need not return that item to "the person from whom [it] was se......
  • State v. Nunez, No. 23
    • United States
    • New Mexico Supreme Court of New Mexico
    • 30 d4 Dezembro d4 1999
    ...465 U.S. 354, 104 S.Ct. 1099, 79 L.Ed.2d 361 (1984), superceded on other grounds by statute as noted by Cooper v. City of Greenwood, 904 F.2d 302, 305 n. 3 (5th Cir.1990). This two-pronged test is supposed to determine whether a forfeiture statute was intended by Congress to be punitive or ......
  • Little v. Gore, Case No. 14-cv-02181-BAS(JMA)
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • 8 d2 Dezembro d2 2015
    ...se. See United States v. Jeffers , 342 U.S. 48, 53, 72 S.Ct. 93, 96 L.Ed. 59 (1951) ; see also Cooper v. City of Greenwood, Mississippi , 904 F.2d 302, 305 (5th Cir.1990) .... “An object is contraband per se if its possession, without more, constitutes a crime; or in other words, there is n......
  • U.S. v. Ninety Three Firearms, No. 01-5348.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 27 d2 Maio d2 2003
    ..."intrinsically illegal in character" because he would have no property right in such a weapon. Cooper v. City of Greenwood, 904 F.2d 302, 304 (5th Cir.1990). On the other hand, the district court noted, a claimant "may have an ownership interest" in firearms, not intrins......
  • Request a trial to view additional results
58 cases
  • City of N.Y. v. U.S. Postal Serv., 19-cv-5934 (BMC)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • 15 d1 Fevereiro d1 2021
    ...per se because one cannot have a property right in that which is not subject to legal possession." Id. (quoting Cooper v. Greenwood, 904 F.2d 302, 305 (5th Cir. 1990) ). In a civil forfeiture proceeding, the government need not return that item to "the person from whom [it] was se......
  • State v. Nunez, No. 23
    • United States
    • New Mexico Supreme Court of New Mexico
    • 30 d4 Dezembro d4 1999
    ...465 U.S. 354, 104 S.Ct. 1099, 79 L.Ed.2d 361 (1984), superceded on other grounds by statute as noted by Cooper v. City of Greenwood, 904 F.2d 302, 305 n. 3 (5th Cir.1990). This two-pronged test is supposed to determine whether a forfeiture statute was intended by Congress to be punitive or ......
  • Little v. Gore, Case No. 14-cv-02181-BAS(JMA)
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • 8 d2 Dezembro d2 2015
    ...se. See United States v. Jeffers , 342 U.S. 48, 53, 72 S.Ct. 93, 96 L.Ed. 59 (1951) ; see also Cooper v. City of Greenwood, Mississippi , 904 F.2d 302, 305 (5th Cir.1990) .... “An object is contraband per se if its possession, without more, constitutes a crime; or in other words, there is n......
  • U.S. v. Ninety Three Firearms, No. 01-5348.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 27 d2 Maio d2 2003
    ..."intrinsically illegal in character" because he would have no property right in such a weapon. Cooper v. City of Greenwood, 904 F.2d 302, 304 (5th Cir.1990). On the other hand, the district court noted, a claimant "may have an ownership interest" in firearms, not intrins......
  • Request a trial to view additional results

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