Krimstock v. Kelly
| Decision Date | 15 September 2006 |
| Docket Number | Docket No. 05-6691-CV. |
| Citation | 464 F.3d 246 |
| Parties | Valerie KRIMSTOCK, Charles Flatow, Ismael Delapaz, Clarence Walters, James Webb, Michael Zurlo, Sandra Jones, individually and on behalf of all other persons similarly situated, Plaintiffs-Appellants, v. Raymond KELLY, in his official capacity as Commissioner of the New York City Police Department, Property Clerk, New York City Police Department, the City of New York, District Attorneys for the City of New York, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
Thomas O'Brien, The Legal Aid Society, New York, New York, for Plaintiffs-Appellants.
Robert Hettleman, Assistant District Attorney (Alan Gadlin, Assistant District Attorney, on the brief), New York, New York, for Defendants-Appellees.
Before: JACOBS, POOLER, Circuit Judges, and KORMAN, District Judge.*
The Plaintiff class challenges the seizure and detention of vehicles by the City of New York. This appeal is taken from the most recent order issued in this long-running litigation, the December 6, 2005 "Amended Order" of the United States District Court for the Southern District of New York (Mukasey, C.J.), insofar as the order allows a district attorney to decide unilaterally that a vehicle seized pursuant to a warrantless arrest should be retained as potential evidence for a criminal proceeding. For the following reasons, we conclude that due process requires review by a neutral fact-finder. We therefore vacate the Amended Order and remand to the district court.
This is the third time this Section 1983 action comes to this Court. Commenced in 1999, the action challenges the constitutionality of New York City's forfeiture statute, N.Y. City Admin. Code § 14-140. Six of the seven named plaintiffs were arrested for driving under the influence of drugs or alcohol; the seventh had her car seized after her estranged husband was arrested for drugs and weapons possession while using it. In all seven instances, the vehicles were seized as "instrumentalities of the crime," with a view to forfeiture. None of the vehicles was seized as "evidence" — i.e., property that may be needed as evidence for a criminal prosecution.1
On November 13, 2000, the district court dismissed the action on the ground that the probable cause supporting an arrest constituted sufficient process to support the seizure and continued impoundment of a vehicle. This Court reversed in Krimstock v. Kelly, 306 F.3d 40 (2d Cir.2002) ("Krimstock I"), which held that due process requires a prompt hearing before a neutral fact-finder to test the probable validity of the deprivation pendente lite, including the probable cause for the initial warrantless seizure and the necessity and legitimacy of continued impoundment. Krimstock I, 306 F.3d at 69-70. We remanded for the district court [i] to decide plaintiffs' motion for class certification pursuant to Rule 23 of the Federal Rules of Civil Procedure and [ii] to fashion a post-seizure hearing process that rectifies the constitutional infirmities in New York's forfeiture statute.
Krimstock I considered only the seizure and retention of vehicles for forfeiture as instrumentalities of crime. A footnote added that the 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[,]" and that "[i]n any event, it is hard to imagine how an arrestee's vehicle could serve as evidence in the ordinary DWI case." Krimstock I, 306 F.3d at 69 n. 32.
On remand, the district court solicited the parties' views regarding the structure of a class and framing of appropriate relief. At that point, the issue arose as to vehicles seized as evidence. The plaintiffs asked that the district court apply any post-seizure relief procedures to all vehicle seizures; and the City asked the court to exclude vehicles seized as evidence. The City's argument was supported by the District Attorneys of the five counties of New York City and the Special Narcotics Prosecutor of the City of New York (collectively the "district attorneys").2
The district court's October 24, 2003 order (the "Initial Order") applied to all vehicles seized on or after January 23, 2004, and provided:
• At the time of seizure, the New York City Police Department must give written notice of the right to a hearing and a form to be used to request such a hearing;
• The claimant of a vehicle (either the owner or the person from whom the vehicle was seized) has the right to a hearing within ten business days after receipt by the Police Department of a written demand for such a hearing;3
• The post-seizure hearings would be conducted by the Office of Administrative Trials and Hearings ("OATH"); and
• The Police Department has the burden of proving by a preponderance of the evidence that probable cause existed for the arrest of the vehicle's operator, that it is likely the City would prevail in an action to forfeit the vehicle, and that it is necessary that the vehicle remain impounded in order to ensure its availability for a judgment of forfeiture.
Additional provisions were crafted to meet objections that the inclusion of vehicles seized as evidence would impair administration of the criminal law. Thus the Initial Order:
• Required that the Police Department give the relevant district attorney notice of OATH post-seizure hearings;
• Authorized OATH judges to order continued retention of vehicles when necessary to ensure their availability as evidence;
• Allowed the district attorney to seek a retention order from an OATH judge, a justice of the New York Supreme Court or a judge of the New York City Criminal Court;4 and
• Provided that "no vehicle could be released without the 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."
The City and district attorneys appealed, arguing that the provisions for a retention order and a waiver of defenses were inadequate to protect their interests. While the appeal was pending, we denied defendants' motion for a stay, so the Initial Order was in effect from January 23, 2004 until August 5, 2004. On August 5, 2004, we issued an opinion affirming the Initial Order as it relates to vehicles held for forfeiture but vacating and remanding the order as it relates to vehicles held as evidence. Jones v. Kelly, 378 F.3d 198, 199 (2d Cir.2004) ("Krimstock II"). Without ruling on the merits of the remedial order, we remanded because the district court had relied on assumptions about the impact of post-seizure hearings on prosecutions without testing the assumptions in an evidentiary hearing.
The district court conducted an evidentiary hearing on April 25, 2005, at which the district attorneys presented two witnesses. Maureen McCormick, Kings County Executive Assistant District Attorney and Chief of the Kings County Vehicular Crimes Bureau, described the procedures used to designate vehicles as potential evidence needed for a criminal proceeding, and the impact of the Initial Order and Krimstock process on prosecutions. Cheryl McCormick, Director of Legislative Affairs at the New York County District Attorney's Office, provided statistics on the numbers of cars released and retained by the district attorneys' offices and the nature and type of cases in which district attorneys sought to retain vehicles as evidence.5 Plaintiffs presented no witnesses.
In an oral ruling on December 6, 2005, the district court found that the district attorneys' concern about the inclusion of trial evidence in the Initial Order "is legitimate"; that the designation of vehicles as trial evidence was conducted "cautiously, not contumaciously"; and that "the number of vehicles so designated is not insignificant and makes the order as heretofore constructed a potentially serious encumbrance to criminal prosecutions." Accordingly, the district court modified its Initial Order to provide that a Krimstock hearing would not go forward if the district attorney sends prior written notice to the OATH judge that the vehicle in question is needed as potential evidence in a pending criminal matter. Thus a district attorney could unilaterally decide that a vehicle is needed as evidence and forestall any hearing on the legitimacy of the arrest, seizure, and continued retention. The timing and hearing procedures in the Initial Order were otherwise unchanged.
Plaintiffs appealed.
In Krimstock II, we explained that "the district court has broad discretion to ensure that the mandate of the prior decision of this Court is carried out." 378 F.3d at 204. Because the retention of a vehicle implicates both Fourth and Fourteenth Amendment rights, we analyze each in turn. Krimstock I, 306 F.3d at 48-60.
No one disputes that plaintiffs' vehicles have been seized within the meaning of the Fourth Amendment; the issue is whether the seizure and continued impoundment is reasonable. Krimstock I accepted that the reasonableness of the arrest and seizure is satisfied by a police officer's determination that probable cause exists, but held that the probable-cause determination at the outset and the eventual civil forfeiture proceeding do not justify the interim impoundment of the vehicles for the months or years of limbo between an arrest and a forfeiture proceeding, Krimstock I, 306 F.3d at 50-51, and that reasonableness required prompt review by a neutral factfinder, id. at 67.
Krimstock I does not decide the present appeal: it dealt solely with vehicles being held for forfeiture, and the Court's analysis depended in part on the self-interest of the City in taking vehicles for forfeiture. Id. at 51. Courts have, however, subjected a prosecutor's assertion that evidence is...
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