Lee v. Ladd

• Decision Date: 04 March 1992
• Parties: Sandy LEE, Plaintiff/Appellant, v. Gerald LADD and Metropolitan Government of Nashville and Davidson County, Defendants/Appellants.
• Court: Tennessee Court of Appeals

Page 323

834 S.W.2d 323

Sandy LEE, Plaintiff/Appellant, v. Gerald LADD and Metropolitan Government of Nashville and Davidson County, Defendants/Appellants.

Court of Appeals of Tennessee Middle Section.

March 4, 1992.

Permission to Appeal Denied by

Supreme Court

May 26, 1992.

John E. Herbison, Nashville, for plaintiff/appellant.

Patricia J. Cottrell, Director of Law, Dept. of Law of the Metropolitan Government of Nashville and Davidson County, William L. Parker, Jr., Metropolitan Atty., Nashville, for defendants/appellees.

OPINION

CANTRELL, Judge.

The plaintiff, whose automobile was impounded for an expired registration, sued a police officer and the Metropolitan Government of Nashville and Davidson County for violating her civil rights. The complaint sought compensatory and punitive damages, attorneys' fees, and a declaration that the Metropolitan Government's impoundment policies violate the United States and Tennessee constitutions. The trial judge granted summary judgment to the defendants. We affirm.

I.

In March of 1990, Gerald Ladd, a metropolitan police officer, observed a Pontiac automobile with an expired license being driven on a Nashville street. Officer Ladd stopped the vehicle and the driver, Sandy Lee, told him that if she was being stopped because of the expired tags she had already got a ticket for that. She showed Officer Ladd a citation issued approximately three weeks earlier for the same offense. When Officer Ladd determined that her registration had expired eleven months earlier and that she had done nothing about the earlier citation, he decided to impound her vehicle. He issued her a citation for violating the registration laws and called a wrecker to tow the car.

Mrs. Lee went to a nearby state office building where she was able to renew her state registration. She then went by taxi cab to the impoundment lot where she paid the required fees and retrieved her automobile.

II.

This is an action under Title 42, Section 1983 of the United States Code which gives an aggrieved party a cause of action when a person, acting under color of state law, deprives the aggrieved party of any rights, privileges or immunities secured by the United States Constitution. The plaintiff also argues that there is an implied cause of action for violations of the Tennessee Constitution. The only authority cited for that proposition is Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The United States Supreme Court in that case held that a person aggrieved by a violation of his constitutional rights by a federal officer had a private cause of action against the federal officer--even without a statute creating the cause of action.

We have held, however, in prior cases that we know of no authority for the recovery of damages for a violation of the Tennessee Constitution by a state officer. See Bennett v. Horne, 1989 WL 86555 (No. 89-31-II, Tenn.Ct.App., filed in Nashville August 2, 1989). So far as we are able to determine, the Tennessee courts have not extended the rationale of Bivens to give a state cause of action against a police officer for violating a person's civil rights.

Nevertheless, 42 U.S.C. Sec. 1983 applies to violations of the United States Constitution, and if the seizure of Ms. Lee's automobile was unreasonable or was accomplished without the process due her, she has a remedy.

Although in her brief Ms. Lee approaches the problem tangentially, we think her United States constitutional rights, which she claims were violated by Officer Ladd, are derived from the Fourth and Fourteenth Amendments. The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.

The pertinent part of the Fourteenth Amendment is found in Section 1. It provides:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

a. Due Process

The due process clause was "intended to secure the individual from the arbitrary exercise of the powers of government." Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 665, 88 L.Ed.2d 662, 668 (1986). For the purpose of evaluating a due process claim under 42 U.S.C. Sec. 1983, the courts conduct a two-step analysis: whether the plaintiff was deprived of a protected interest; and, if so, what process was due. Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982).

As to the first part of the analysis, the defendants in this case do not question the fact that the use of one's automobile is a protected interest.

Under these circumstances, then, what processes is due? Ms. Lee asserts that the seizure of her automobile violated her due process rights because she was denied a pre-towing hearing.

As a general rule, an individual should be given a hearing before being deprived of a significant property interest. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). However, the requirements of due process are flexible and the protection afforded is dictated by the particular situation. Matthews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). The right is not absolute.

With respect to the process due before an automobile is impounded, we know of no authority saying owners are entitled to a hearing before an unregistered automobile may be towed away. In Fuqua v. Armour, 543 S.W.2d 64 (Tenn.1976), the Tennessee Supreme Court dealt summarily with the pre-towing issue, although the Court had already found that the seizure was unreasonable on Fourth Amendment grounds. ¹ The Court simply said: "There is no merit to the contention of appellant that he was entitled to notice prior to the seizure of his automobile." 543 S.W.2d at 68. The Court cited Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974) as authority for its conclusion. In that case the United States Supreme Court restated what it had said in Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), "that, in limited circumstances, immediate seizure of a property interest without an opportunity for prior hearing is constitutionally permissible." 416 U.S. at 678, 94 S.Ct. at 2089, 40 L.Ed.2d at 465. Such circumstances included a situation where "the seizure has been directly necessary to secure an important governmental or general public interest." Id.

Both Fuqua and Calero-Toledo involve automobiles transporting illegal substances, so neither is directly on point here. The lower federal courts, however, have addressed the due process problem involved in towing illegally parked or unregistered vehicles. In Scofield v. City of Hillsborough, 862 F.2d 759 (9th Cir.1988), a case involving an unregistered vehicle in a no parking zone, the court denied the owner's assertion that he was entitled to a pre-towing hearing. The court said:

We think that the governmental interest in towing unregistered vehicles is analogous to the governmental interest in towing illegally parked vehicles. By towing unregistered vehicles, the government removes these automobiles from the public streets, encourages owners to maintain automobile registration, and deters owners from violating state registration laws. If notice had to be given before a car with a year old registration could be towed, it is likely the car would simply be driven away. This would not advance the governmental interest of getting the car registered....

862 F.2d at 763-764. See also Allen v. City of Kinloch, 763 F.2d 335 (8th Cir.1985) (municipalities authorizing towing of illegally parked cars are not constitutionally required to establish predeprivation notice and hearing procedures); Cokinos v. District of Columbia, 728 F.2d 502 (D.C.Cir.1983) (motorist had no due process right to notice and hearing prior to towing of his illegally parked vehicle from a city street to a central lot).

Under the circumstances of this case we hold that Ms. Lee was not entitled to a hearing before her automobile was towed away.

b. Reasonableness

The harder question in this case is whether towing Ms. Lee's car was an unreasonable seizure under the Fourth Amendment. The answer to that question, in any particular case, depends on the facts and circumstances involved, and the burden of showing reasonableness is on the seizing party. Drinkard v. State, 584 S.W.2d 650 (Tenn.1979). In Fuqua v. Armour, 543 S.W.2d 64 (Tenn.1976), the Court summarized the general rules that make up the test of reasonableness. The Court said:

A search or a seizure without a warrant is presumptively unreasonable and invalid. U.S. v. Jeffers [342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951) ]; McDonald v. U.S., 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948). The right to search or seize without a warrant is the exception and it exists only under exceptional circumstances. McDonald v. U.S., supra; Trupiano v. U.S. [334 U.S. 699, 68 S.Ct 1229, 92 L.Ed. 1663 (1948) ]. In McDonald it was held that when officers are not responding to an emergency, there must be compelling reasons to justify their search or seizure without a warrant. It has been said that the test is the apparent need for summary seizure and that when the securing of a warrant is reasonably practical, it must be used. Trupiano v. U.S., supra.

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