Gillam v. Landrieu, Civ. A. No. 76-3762.
| Citation | 455 F. Supp. 1030 |
| Decision Date | 09 August 1978 |
| Docket Number | Civ. A. No. 76-3762. |
| Parties | Velma GILLAM, Individually, and on behalf of all others similarly situated v. Moon LANDRIEU, Individually, and in his official capacity as Mayor of the City of New Orleans, Clarence B. Giarrusso, Individually, and in his official capacity as Superintendent of Police, New Orleans Police Department, Howard O. Pittman, Individually, and in his official capacity as Commander, Auto Pound Division, New Orleans Police Department, Joseph V. DiRosa, Individually, and in his official capacity as a member of the New Orleans City Council, Frank Friedler, Jr., Individually, and in his official capacity as a member of the New Orleans City Council, A. L. Davis, Individually, and in his official capacity as a member of the New Orleans City Council, John D. Lambert, Individually, and in his official capacity as a member of the New Orleans City Council, Phillip C. Ciaccio, Individually, and in his official capacity as a member of the New Orleans City Council, Broderick A. Bagert, Individually, and in his official capacity as a member of the New Orleans City Council, Joseph Giarrusso, Individually, and in his official capacity as a member of the New Orleans City Council, "John Does," unnamed and unknown in number Individually, and in their capacities as agents, employees, or subordinates of the foregoing named defendants. |
| Court | U.S. District Court — Eastern District of Louisiana |
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Elliot G. Snellings, New Orleans, La., for plaintiffs.
Freeman R. Matthews, Asst. City Atty., New Orleans, La., for defendants.
Robert M. Hearin, Jr., Russell & DeRussy, New Orleans, La., for movant Amicus Curiae and the New Orleans Chapter of the Louisiana Consumers' League.
Before this Court are the questions of whether to preliminarily and permanently enjoin the City of New Orleans, Louisiana from enforcing certain traffic regulations alleged to be constitutionally deficient on a number of procedural due process grounds. Each challenge arises as a claim brought by a named plaintiff both individually and on behalf of others similarly situated. This suit was originally filed on behalf of plaintiff Velma Gillam and all others similarly situated. Thereafter, the complaint was twice amended: first, to add Delores Bush, and all others similarly situated, as plaintiffs, and secondly, to add Jerri L. Klein and all others similarly situated, as plaintiffs. To facilitate discussion of the legal issues involved, this opinion will first cover the claims of plaintiff Delores Bush and the class she represents, then those of Velma Gillam and the class she represents, and lastly those of Jerri L. Klein and the class she represents. The parties have stipulated both the propriety of handling these matters as class actions and the definitions of the classes.
The parties agreed to try the issue of liability separately from that of damages. The liability issue was submitted to the Court on stipulated facts and briefs by the parties concerning the relevant legal principles. Having studied these submissions, the Court is ready to rule. The Court makes the following findings of fact and conclusions of law in support of its decisions set forth below.
1. On Thursday, December 2, 1976, the unoccupied 1968 two door Oldsmobile Cutlass, license number 496 B 511, owned by plaintiff Delores Bush, was ticketed by a New Orleans Police Department (N.O.P.D.) officer for being parked in a residential neighborhood for more than 24 hours, and without giving plaintiff Bush an opportunity for a hearing or any notice prior to the taking of said vehicle, the N.O.P.D. towed and impounded her vehicle at the N.O.P.D. Auto Pound on Claiborne Avenue.
2. Subsequently, upon discovering through her own initiative that her vehicle had been ticketed, towed and impounded, plaintiff sought a release of her vehicle from the Auto Pound. Said vehicle had been transferred to the Almonaster Pound. Plaintiff obtained release by depositing her validly issued Louisiana driver's license with the personnel at the Auto Pound on December 10, 1976. No notice had been sent to plaintiff Bush as of the time of the release of her vehicle on December 10, 1976. Storage fees had accrued against her vehicle at the rate authorized per Section 38-274, as amended (set forth in appendix A). Plaintiff Bush joined this suit for injunctive and declaratory relief, and for individual damages, on December 23, 1976.
Plaintiff Bush's vehicle was ticketed, towed and impounded pursuant to Section 38-274, as amended, of the Code of the City of New Orleans (hereinafter referred to as Section 38-274). Under Section 38-274, N.O.P.D. officers, or other duly authorized agents, issue parking tickets to unoccupied vehicles allegedly found to be in violation of "any traffic law" and have the vehicle removed by an N.O.P.D. tow truck and then impounded at the Police Auto Pound located at the intersection of Claiborne Avenue and St. Louis Street, New Orleans, Louisiana.
3. Pursuant to Section 38-274, any unoccupied vehicle found to be allegedly violating "any traffic law" is subject to immediate ticketing, towing, and impoundment. The N.O.P.D. and the New Orleans City Counsel have not classified the numerous traffic offenses regarding unoccupied vehicles into separate categories of those offenses for which a vehicle may be ticketed and impounded as opposed to those offenses for which a vehicle may be only ticketed and not impounded.
4. The N.O.P.D. makes no attempt to notify the owner of a vehicle about to be impounded, nor do they provide an opportunity for a hearing to such owners prior to impoundment. The N.O.P.D. or the Traffic Engineers has not erected on the city streets notice or "tow-away zone" signs covering every traffic law for which an unoccupied vehicle, if found to be in violation of, may be subject to immediate impoundment.
5. Once an unoccupied vehicle has been impounded at the N.O.P.D. Claiborne Auto Pound, should the vehicle owner report there to obtain release of his or her vehicle such release may be obtained in a limited number of different ways. Under Section 38-274 the impounded vehicle may be surrendered to the owner thereof upon either placing with the authorized personnel at the Pound a cash bond in the amount of thirty ($30.00) dollars or by depositing his/her validly issued Louisiana chauffeur's or operator's license. The personnel at the Pound will not accept a non-resident's drivers license validly issued under the laws of the non-resident's state. The vehicle owner may also waive trial, enter a plea of guilty to the traffic offense, pay the parking fine, towing fee and storage charges and obtain a release of his/her vehicle.
6. At the time of filing the stipulations of fact in this case, the personnel at the Auto Pound are accepting Louisiana resident's chauffeurs and operators licenses in lieu of cash bond for release of the vehicle to the owner.
7. After the vehicle is impounded at the N.O.P.D. Claiborne Pound and remains there unclaimed for twenty-four (24) hours, it is then subject to removal to the N.O.P.D. Almonaster Extension Pound where it is held at least thirty (30) days before it is sold or otherwise disposed of according to Section 38-301 of the Code of the City of New Orleans (which is set forth in appendix B).
8. No notices are sent to the vehicle owner from the Claiborne Pound. It is at the Almonaster Extension Pound that notices are sent to the last owner of record, as obtained from the license plates, brake tag, or automobile serial number. The police officer who sends out all notices is Officer Paul Bachemin. The notices are sent by certified mail. No notice is given by means of a telephone call.
9. After a vehicle has been held at the N.O.P.D. Claiborne Pound for 24 hours, it is transferred to the Almonaster Pound. After the vehicle arrives at the Almonaster Pound, Officer Paul Bachemin is responsible for sending out the notices.
10. Pursuant to Section 38-274, any vehicle held at an N.O.P.D. Auto Pound for over twenty-four (24) hours is charged an assessment of three dollars ($3.00) per day, or any part thereof, exclusive of the first 24 hours as a storage fee. Said storage fees do accrue against the vehicle prior to the notification of the vehicle owner of the fact that such fees are presently accruing. Storage fees are assessed on a daily accruing basis after the first 24 hours even though the vehicle owner may have no knowledge that his/her vehicle has been impounded or that a daily accruing storage fee is being assessed against his/her property.
11. In the event that an owner of an impounded vehicle deposits his/her validly issued Louisiana chauffeurs or operators license or deposits a cash bond with the personnel at the Pound, said owner will be given a date to appear for trial in the Traffic Court of the City of New Orleans. The normal interval period between depositing bond or drivers license and the date of trial is four (4) weeks.
12. In the event that a vehicle owner is subsequently found to be guilty of the traffic violation, which was the cause of such towing and impoundment, after appearing for a trial on the merits in the Traffic Court of the City of New Orleans, said vehicle owner must pay pursuant to Section 38-274 the violation-ticket fine together with the towing fee and any accrued storage charges.
13. The class of persons represented by plaintiff Delores Bush comprises all of those who have had or may in the future have their unoccupied vehicles ticketed, towed and impounded in the City of New Orleans, Orleans Parish, Louisiana, pursuant to Section 38-274 of the Code of the City of New Orleans, as amended on September 14, 1976.
1. On Thursday, October 7, 1976, the dark green...
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