Krimstock v. Kelly, Docket No. 00-9488.

• Court: U.S. Court of Appeals — Second Circuit
• Writing for the Court: Sotomayor
• Citation: 306 F.3d 40
• Parties: Valerie KRIMSTOCK, Charles Flatow, Ismael Delapaz, Clarence Walters, James Webb, Michael Zurlo, and Sandra Jones, individually and on behalf of all other persons similarly situated, Plaintiffs-Appellants, v. Raymond W. KELLY, in his official capacity as Commissioner of the New York City Police Department, Property Clerk, New York City Police Department, and the City of New York, Defendants-Appellees.
• Decision Date: 18 September 2002
• Docket Number: Docket No. 00-9488.

306 F.3d 40 Valerie KRIMSTOCK, Charles Flatow, Ismael Delapaz, Clarence Walters, James Webb, Michael Zurlo, and Sandra Jones, individually and on behalf of all other persons similarly situated, Plaintiffs-Appellants,
v.
Raymond W. KELLY, in his official capacity as Commissioner of the New York City Police Department, Property Clerk, New York City Police Department, and the City of New York, Defendants-Appellees. Docket No. 00-9488. United States Court of Appeals, Second Circuit. Argued: June 20, 2001. Decided: September 18, 2002.

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Thomas M. O'Brien, of counsel, The Legal Aid Society, Criminal Defense Division, New York, NY, for plaintiffs-appellants.

Julie Steiner, Assistant Corporation Counsel, New York, NY, for Michael D. Hess, Corporation Counsel of the City of New York (Stephen J. McGrath, on the brief), for defendants-appellees.

Before: JACOBS, F.I. PARKER, and SOTOMAYOR, Circuit Judges.

SOTOMAYOR, Circuit Judge.

Defendant City of New York seizes the motor vehicles of some of those accused of driving while intoxicated and of committing other crimes for which a motor vehicle could be considered an instrumentality.¹ The City maintains possession of these

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vehicles in the hope of one day gaining title to them by prevailing in civil forfeiture proceedings. These proceedings generally await the resolution of criminal charges and can take months or even years to be finalized. The City claims and plaintiffs-appellants ("plaintiffs") do not contest that the proceedings are authorized, as is the seizure, by provisions of the City's Civil Administrative Code that cede to the City title to property found to be an instrumentality of crime.

Plaintiffs contend that their inability to challenge, promptly after the vehicles are seized, the legitimacy of and justification for the City's retention of the vehicles prior to judgment in any civil forfeiture proceeding violates their constitutional rights. We agree. A car or truck is often central to a person's livelihood or daily activities. An individual must be permitted to challenge the City's continued possession of his or her vehicle during the pendency of legal proceedings where such possession may ultimately prove improper and where less drastic measures than deprivation pendente lite are available and appropriate.

We vacate the judgment of the district court and remand for the court to order, after consultation with the parties, the appropriate injunctive relief.

BACKGROUND

Plaintiffs challenge the seizure and retention of motor vehicles under a section of the City's Civil Administrative Code, N.Y.C.Code § 14-140. The City claims and plaintiffs do not contest that the statute authorizes the City's Property Clerk to take custody, following seizure, of, among other things, "all property ... suspected of having been used as a means of committing crime or employed in aid or furtherance of crime...." N.Y.C.Code § 14-140(b). Seized property is retained by the Property Clerk of the New York City Police Department until the City either loses a future forfeiture suit or decides not to pursue one and someone claims the seized property. Id. § 14-140(e); 38-A New York City Rules & Regulations ("R.C.N.Y.") § 12-36. The relevant provision of the Administrative Code states:

Where ... property ... ha[s] been used as a means of committing crime or employed in aid or in furtherance of crime..., a person who so ... used [or] employed... any such ... property or permitted or suffered the same to be used [or] employed ... or who was a participant or accomplice in any such act, or a person who derives his or her claim in any manner from or through any such person, shall not be deemed to be the lawful claimant entitled to ... such ... property ....

N.Y.C.Code § 14-140(e)(1). The statute applies to all levels of crime, not just felonies, and to all types of crimes. Moreover, it applies to all property, both real and personal.

Under the statute, the City can seize a motor vehicle following an arrest for the state-law charge of driving while intoxicated ("DWI") or any other crime for which the vehicle could serve as an instrumentality. The arraignment of the defendant in the criminal action concerns only the prosecution of the criminal charge. A defendant charged with DWI does not have a right to a post-arrest hearing to determine whether probable cause existed either for his or her arrest or for the seizure of the vehicle. Unlike a felony charge, for which a "prompt" probable cause hearing must be held or evidence of probable cause must be presented to a grand jury, N.Y.Crim. Proc. § 180.10, a misdemeanor charge of DWI requires no post-arrest determination of probable cause, id. §§ 170.10 et seq.; People v. Green, 96 N.Y.2d 195, 199-200,

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726 N.Y.S.2d 357, 361, 750 N.E.2d 59 (2001) (noting, in a DWI case, that whereas the "New York Constitution requires a Grand Jury indictment for felony offenses..., misdemeanor charges may be brought on a prosecutor's information"); In re Robert L., 129 Misc.2d 742, 744, 493 N.Y.S.2d 970, 972 (Fam. Ct. Bronx Co.1985) ("There is no provision for a preliminary or probable cause hearing under the [New York] Criminal Procedure Law in misdemeanor cases."). Moreover, N.Y.C.Code § 14-140 affords the vehicle owner no opportunity for a prompt post-seizure hearing to test probable cause for the vehicle's seizure. Thus, neither New York criminal procedure nor the City's civil forfeiture law allows a DWI defendant or the owner of a vehicle driven by a DWI defendant to challenge promptly the legitimacy of the City's continued custody of the vehicle.² That challenge may not be made until the City seeks the vehicle's forfeiture in a separate civil proceeding that could take place months or even years after the seizure.

Upon seizing the vehicle, the police issue the arrestee a voucher for the vehicle and any other seized property. 38-A R.C.N.Y. § 12-32(a). If a claimant makes a formal demand for the return of the vehicle, the City has twenty-five days in which either to initiate a civil forfeiture proceeding under the City's Administrative Code or to release the vehicle. Id. § 12-36(a).³ Even if the City chooses to commence a civil forfeiture proceeding within the twenty-five day period, however, the proceeding is commonly stayed until the criminal proceeding concludes. In a forfeiture proceeding, the City "bear[s] the burden of proving by a preponderance of the evidence that [it] is legally justified to continue to retain the property." Id. § 12-36(b).⁴

Vehicles belonging to the named members of the putative class in this action were seized by the City between March and May of 1999. The vehicles of six of the seven named plaintiffs — Valerie Krimstock,

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Charles Flatow, Ismael Delapaz, Clarence Walters, James Webb, and Michael Zurlo — were seized after each was arrested for DWI.⁵ In some cases, the Property Clerk did not institute civil forfeiture actions against plaintiffs' vehicles until well over two months after the seizures. For example, Clarence Walters' car was seized on March 15, 1999. He had never been arrested for any offense before, and his DWI case in criminal court ended on June 1, 1999, when he pleaded guilty to the lesser charge of driving while impaired, a non-criminal violation. N.Y. Veh. & Traf. § 1192(1). Mr. Walters paid a fine, performed community service, and completed a Drinking Driver program that rendered him eligible for restoration of his driver's license. On June 4, more than two-and-a-half months after the seizure of his vehicle, he was served with a forfeiture complaint. At no time between June 1999 and May 2001, when his vehicle was finally released, was Mr. Walters given an opportunity to challenge the City's retention of the vehicle.

Each of the five other DWI arrestees also pleaded guilty to the lesser charge of driving while impaired. Valerie Krimstock, who at the age of forty-eight had never been arrested before, entered her plea to the lesser charge in September 1999 — some four months after she had been served with a forfeiture complaint. It was not until eleven months later, in August 2000, that a judge dismissed the forfeiture action and ordered that her 1995 Toyota, on which she had continued to make monthly payments of $273.00, be returned to her.

In the case of Charles Flatow — a retired sales manager whose car was seized on April 3, 1999 in connection with a first-time DWI arrest — the Property Clerk commenced a forfeiture action on June 15, 1999. Mr. Flatow also pleaded guilty to the lesser charge, paid a fine, and completed the required community service and Drinking Driver program. Yet by December 1999, he still had received no hearing in the forfeiture action and his car remained in police custody. As a result, Mr. Flatow had not been given an opportunity to present evidence that a prescription anti-depressant medication he was taking at the time of the arrest caused the Breathalyzer test to exaggerate the percentage of alcohol in his bloodstream.

To take yet another example, the 1995 Plymouth van owned by the seventh named plaintiff, Sandra Jones, was seized in March 1999 when her estranged husband, to whom she had lent the vehicle, was arrested for drug and weapon possession. Even though these charges were later dismissed, the Property Clerk initiated a forfeiture action in May 1999, alleging that Ms. Jones had "consented, suffered or permitted" her vehicle to be used by her husband in the commission of crimes. During the pendency of the action, Ms. Jones continued to make monthly payments of $428.06 on her impounded vehicle. In January 2000, some ten months after the police had seized it, the Property Clerk returned her van. In sum, at the time this suit was filed in December 1999, no court had yet ruled on the legitimacy of the retention of any of plaintiffs' vehicles, all of which remained in...