Jones v. Kelly, Docket No. 03-9232-EV(L).

• Decision Date: 05 August 2004
• Docket Number: Docket No. 04-0147(CON).,Docket No. 03-9232-EV(L).
• Parties: Sandra JONES, Clarence Walters, James Webb, Michael Zurlo, Valerie Krimstock, Charles Flatow, and Ismael Delapaz, Plaintiff-Appellees, v. Raymond KELLY, Property Clerk, and City of New York, Defendant-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

378 F.3d 198

Sandra JONES, Clarence Walters, James Webb, Michael Zurlo, Valerie Krimstock, Charles Flatow, and Ismael Delapaz, Plaintiff-Appellees, v. Raymond KELLY, Property Clerk, and City of New York, Defendant-Appellants.

Docket No. 03-9232-EV(L).

Docket No. 04-0147(CON).

United States Court of Appeals, Second Circuit.

Argued: May 25, 2004.

Decided: August 5, 2004.

Appeal from the United States District Court for the Southern District of New York, Michael B. Mukasey, Chief Judge.

Julie Steiner, Assistant Corporation Counsel, for Michael A. Cardozo, Corporation Counsel of the City of New York (Leonard Koerner, Chlarens Orsland, and Julie Steiner, Assistant Corporation Counsels, on the brief), New York, NY, for Defendant-Appellants.

Thomas O'Brien, The Legal Aid Society, Brooklyn, NY, for Plaintiff-Appellees.

Alan Gadlin, for Amicus Curiae New York State District Attorneys Association (Michael A. Arcuri, Mark Dwyer, Anthony J. Girese, and Alan Gadlin, on the brief).

Before: VAN GRAAFEILAND, SACK, and WESLEY, Circuit Judges.

WESLEY, Circuit Judge.

In 1999, plaintiffs' vehicles were seized and retained as instrumentalities of a crime pursuant to the City of New York's forfeiture statute, N.Y.C. Admin. Code § 14-140. The police seized vehicles from six of the seven named plaintiffs when those individuals were arrested for operating a motor vehicle while under the influence of alcohol or drugs ("DWI"). The seventh plaintiff's vehicle was seized when her estranged husband borrowed the vehicle and was arrested for drug and weapons possession. Plaintiffs commenced this putative class action challenging the constitutionality of the forfeiture statute and seeking appropriate injunctive relief. The district court dismissed the case, but in a thorough and thoughtful opinion a panel of this Court reversed. See Krimstock v. Kelly, 306 F.3d 40 (2d Cir.2002) ("Krimstock I"), cert. denied, ___ U.S. ___, 123 S.Ct. 2640, 156 L.Ed.2d 675 (2003).

Those earlier efforts in this matter fully explored the factual and statutory background of the dispute and we see no need to revisit it here. For the purpose of this appeal, it is sufficient to note that this Court held that due process concerns, as embodied in the Fourth and Fourteenth Amendments, required that the City provide prompt post-seizure retention hearings with adequate notice to the owners of the vehicles. Id. at 69-70. In completing its work the Court directed "that promptly after their vehicles are seized under N.Y.C.Code § 14-140 as alleged instrumentalities of a crime, plaintiffs must be given an opportunity to test the probable validity of the City's deprivation of their vehicles pendente lite, including probable cause for the initial warrantless seizure." Id. at 70. We remanded the case to the district court "to rule on plaintiffs' request to certify their class pursuant to Fed.R.Civ.P. 23, and to formulate, in consultation with the parties, the appropriate injunctive relief needed to redress the constitutional violations." Id. at 70-71.

At some point in time — we will explore the chronology of events shortly — the case took a significant turn. The first round of litigation focused solely on the City's contention that it could seize and retain vehicles for forfeiture as instrumentalities of a crime. No party asserted — much less litigated — that the vehicles in question had been seized and held because they constituted "arrest evidence" of the underlying criminal charges that might be offered at trial. Indeed, this Court commented in footnote 32 of Krimstock I"that both parties appear to agree that plaintiffs' vehicles were not seized as `arrest evidence' pursuant to N.Y.C.Code § 14-140(b) but rather as instrumentalities of crime." Id. at 69 n. 32. Fatefully, the footnote concludes: "In any event, it is hard to imagine how an arrestee's vehicle could serve as evidence in the ordinary DWI case." Id.

Following the remand in Krimstock I, the district court solicited the views of the parties with regard to the structure of the class and the content of the Court's injunction. Under Title 38, chapter 12, sub-chapter B of the City's rules and regulations, a district attorney's release of property indicates that the property is no longer needed as evidence. 38 New York City Rules & Regulations ("R.C.N.Y.") § 12-34(c). In July 2003, plaintiffs urged the Court not to require release of a vehicle by the district attorney as a precondition to a post-seizure hearing. Plaintiffs contended that footnote 32 logically established that a vehicle was not likely to be of any evidentiary value in an "ordinary" DWI case. They argued that assistant district attorneys were already overburdened with heavy caseloads. Requiring a release of the vehicle from the prosecutor handling the criminal case would therefore ensure additional and unnecessary delay in effectuating post-seizure retention hearings. Plaintiffs conceded that some mechanism was necessary to allow district attorneys to prevent release in instances in which a district attorney had legitimate concerns that the vehicle was necessary for the prosecution of a criminal action.¹

The City objected to abrogating the release requirement. The City noted that to do so would "hamper the District Attorney's ability to safeguard trial evidence." The City also argued that "[n]othing in the Krimstock decision changes this practice."

In early September 2003, the district court issued a draft order for comment by the parties that established a hearing for vehicles seized as arrest evidence or as an instrumentality of a crime. The order addressed an earlier objection by the City that the criminal courts not be used for post-seizure retention hearings and accepted the City's suggestion instead to conduct hearings through the Office of Administrative Trials and Hearings ("OATH"). The draft order rejected the need for the district attorney's release as a pre-condition to a hearing, but gave OATH judges the power to deny release if the vehicle was properly designated as arrest evidence. The draft order thus shifted a procedural burden from the complainant to the prosecutor. Rather than requiring the defendant to obtain clearance from the prosecutor before seeking return of a vehicle, the order compelled the prosecutor to establish why the vehicle should be held as evidence.

The City responded in early October 2003 by noting that "arrest evidence" was not part of the lawsuit or Krimstock I. The City continued to maintain that the district court could not incorporate a mechanism that interfered with the ability of a prosecutor to prepare and present a criminal case. The City then asserted that between 1,800 and 2,000 cars were being held as arrest evidence at that time.

In response, the plaintiffs argued that the newly disclosed number of arrest-evidence vehicles coincided with the number of cars then held for forfeiture. They also asserted that the district attorneys had stopped giving releases for vehicles until corollary criminal proceedings were terminated, thus effectively delaying all forfeiture proceedings because, under the statute, those proceedings could not be commenced without a "timely demand" that included a district attorney's release, 38 R.C.N.Y. §§ 12-35(b), 12-36. In their view, the significantly larger number of arrest-evidence vehicles became, therefore, "simply a reflection of the large number of impounded cars in pending criminal cases, for which the owners had been unable to obtain a release." Plaintiffs complained to the district court that the increase in the number of arrest-evidence cars was "exactly the kind of deliberate mislabeling that makes individualized due process protection in each case, as the Krimstock [sic] hearing provides, an absolute necessity."

Not surprisingly, the City's district attorneys joined the fray. In October 2003, they complained to the district court that a civil court (OATH) could not order the return of property designated as arrest evidence by a prosecutor; that the district attorneys would not be aware of the post-seizure hearings in the civil courts; and that evidentiary determinations are often fluid matters in which evidence only becomes relevant after being confronted with the accused's defense. The prosecutors noted that in some DWI cases defendants might contend at trial that a defect in the vehicle caused the car to malfunction (swerve or not brake properly) and thus the "malfunction" was not indicative of alcohol- or drug-induced impairment of one's ability to drive. Retention of the vehicle would be necessary to establish that the vehicle was mechanically sound.

In apparent recognition of the prosecutors' legitimate concerns that the law has traditionally left the designation and retention of evidence to the one who bears the burden of proving the crime — the district court amended the draft order on October 24, 2003. The new procedure continued to apply to vehicles seized as arrest evidence or as an instrumentality of a crime. However, it required that notice of the OATH post-seizure retention hearing be given to the appropriate district attorney, and authorized OATH judges to order continued retention of vehicles when necessary to ensure their availability as evidence. A vehicle release order issued by an OATH judge could be nullified by an order of a Justice of the New York Supreme Court or a Judge of the New York City Criminal Court that designated the vehicle as arrest evidence. And, no vehicle could be released without its driver waiving all claims and defenses in the criminal proceeding alleging a defect in the vehicle or other factual assertion based on the vehicle's condition at the time of seizure.

Shortly after the district court issued its new and final order, the City asked for 90 days to implement the new procedures. The court granted that request, extending the effective date of the order to January 23, 2004, and denied a subsequent request for a...