Scofield v. City of Hillsborough

• Decision Date: 26 July 1988
• Docket Number: No. 87-2110,87-2110
• Citation: 862 F.2d 759
• Parties: Alain SCOFIELD, Plaintiff-Appellant, v. CITY OF HILLSBOROUGH; William A. Key, Chief of Police; Thomas Musser, a Police Officer, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 759

862 F.2d 759

Alain SCOFIELD, Plaintiff-Appellant, v. CITY OF HILLSBOROUGH; William A. Key, Chief of Police Thomas Musser, a Police Officer, Defendants-Appellees.

No. 87-2110.

United States Court of Appeals Ninth Circuit.

Submitted July 26, 1988. ^*

Decided Dec. 7, 1988.

Lawrence D. Murray, Murray and Associates, San Francisco, Cal., for plaintiff-appellant.

Jordan G. Powers, Carr, McClellan, Ingersol, Thompson and Horn, Burlingame, Cal., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before BRUNETTI, KOZINSKI and THOMPSON, Circuit Judges.

DAVID R. THOMPSON, Circuit Judge:

Appellant Alain Scofield appeals from a judgment entered against him after a bench trial on his suit brought under 42 U.S.C. Sec. 1983. Scofield contends he suffered a deprivation of due process when his unregistered automobile was towed without prior notice or pre-towing hearing, and when he was denied a post-towing hearing on the validity of the tow. The district court concluded he was not entitled to a pre-towing notice or a pre-towing hearing, and that he had not wrongfully been denied a post-towing hearing. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We affirm in part, reverse in part, and remand to the district court for further proceedings.

I FACTS

On April 21, 1986, Scofield parked his car in a no-parking zone in the City of Hillsborough. Sergeant Musser, who was on patrol in the area, discovered Scofield's car in the no-parking zone. Sergeant Musser noticed the registration sticker on the car had expired. He radioed the Hillsborough Police Department ("HPD") for more information on the vehicle. Through the HPD and the California Department of Motor Vehicles ("DMV"), Sergeant Musser learned the registration had expired in March 1985, and that Scofield had nine outstanding parking tickets. Sergeant Musser issued a citation for the expired registration, pursuant to California Vehicle Code Sec. 4000(a). He then had the car towed, not because it was illegally parked, but because its registration had been expired for over a year. See California Vehicle Code Sec. 22651(o ).

Later that same day, Scofield went to the HPD and learned his car had been towed. He requested an immediate hearing to determine the validity of the towing charges.

He was not granted a hearing, but the HPD authorized the release of his car. Scofield paid the towing charges and regained possession of his car. Two weeks later Scofield returned to the police station and asked Sergeant Musser for a post-towing hearing. It is unclear from the record whether this request was timely, and if it was, whether it was denied. In any event, Scofield did not get a post-towing hearing. Following his visit to the police station, Scofield obtained proof that all of his parking tickets had been paid, and he obtained a current DMV registration for his car.

Scofield filed suit under 42 U.S.C. Sec. 1983 against the City of Hillsborough, Police Chief Key, and Sergeant Musser. After a bench trial, the district court found the defendants had relied in good faith on the DMV information regarding Scofield's expired registration and outstanding tickets in making the decision to have his car towed. The court held that no notice or hearing was required prior to towing the car, and that Scofield had not wrongfully been deprived of a post-towing hearing. Judgment was entered in favor of the defendants and against Scofield. This appeal followed.

II ANALYSIS

A. Pre-Towing Hearing

Scofield alleges his due process rights were violated by denial of both a pre-towing hearing and pre-towing notice. He was not entitled to a pre-towing hearing. Soffer v. City of Costa Mesa, 798 F.2d 361, 362-63 (9th Cir.1986). Whether he was entitled to pre-towing notice is a question not so easily resolved.

B. Pre-Towing Notice

California Vehicle Code section 22651(o ) authorizes an officer to tow a vehicle when its registration has been expired for over a year. This statute is silent, however, on whether any notice is required before the tow can be carried out. Due process requires that certain procedures be followed before an individual can be deprived of property interests. Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 901, 47 L.Ed.2d 18 (1976). To determine what procedures are required, we balance the competing government and private interests. Mathews, 424 U.S. at 334, 96 S.Ct. at 902; Goichman v. Rheuban Motors, Inc., 682 F.2d 1320, 1324 (9th Cir.1982).

The uninterrupted use of one's vehicle is a significant and substantial private interest. Goichman, 682 F.2d at 1324; Stypmann v. City and County of San Francisco, 557 F.2d 1338, 1342 (9th Cir.1977). As we noted in Stypmann, "[a] person's ability to make a living and his access to both the necessities and amenities of life may depend upon the availability of an automobile when needed." Stypmann, 557 F.2d at 1342-43. This interest, however, is burdened by numerous rules and regulations governing the use of one's vehicle, including a requirement that the vehicle be registered. See, e.g., California Vehicle Code Sec. 4000(a) (1987). See also Mays v. Scranton City Police Department, 503 F.Supp. 1255, 1261 (M.D.Pa.1980) (registration requirement is legitimate burden on right to own, operate vehicle).

It is important to emphasize that the tow in the present case was based upon the authority of California Vehicle Code Sec. 22651(o ), which permits a car to be towed when its registration has been expired for over a year. No citation for illegal parking was issued. Scofield argues that an expired registration tow is analogous to an abandoned vehicle tow, and a pre-towing notice should have been given. The defendants, on the other hand, argue that towing a car because its registration has expired is analogous to towing an illegally parked vehicle, and no advance notice of the tow is required.

Our circuit has not decided whether pre-towing notice is required before towing an unregistered car, an abandoned car or an illegally parked car. As to an illegally parked car, however, the Seventh Circuit in Sutton v. City of Milwaukee, 672 F.2d 644, 648 (7th Cir.1982), applied a Mathews The Seventh Circuit's analysis of the interests involved in towing an illegally parked vehicle without notice has been adopted by the Fourth Circuit in De Franks v. Mayor and City Council of Ocean City, 777 F.2d 185, 187 (4th Cir.1985); by the Eighth Circuit in Allen v. City of Kinloch, 763 F.2d 335, 336 (8th Cir.), cert. denied, 474 U.S. 946, 106 S.Ct. 313, 88 L.Ed.2d 289 (1985); by the Fifth Circuit in Breath v. Cronvich, 729 F.2d 1006, 1010 (5th Cir.), cert. denied, 469 U.S. 934, 105 S.Ct. 332, 83 L.Ed.2d 268 (1984) (dicta); and by the District of Columbia Circuit in Cokinos v. District of Columbia, 728 F.2d 502 (D.C.Cir.1983).

                analysis and held that pre-towing notice is not required.  Id. at 648.    In analyzing the competing interests in providing notice prior to towing, the Sutton court noted that the governmental interest in towing illegally parked cars is based on a valid purpose-implementing parking regulations.  Towing not only implements these regulations directly by removing illegally parked cars, but the threat of towing also deters future transgressions.  Sutton, 672 F.2d at 646.    The Sutton court observed that if a notice had to be given before towing an illegally parked car, this would, in effect, preclude towing of all illegally parked vehicles.  "There is no way that the city or state can notify the owners of illegally parked cars that their cars will be towed and provide them then and there with an opportunity to challenge the lawfulness of the towing.  To require notice and hearing in advance is ... to prevent all towing of illegally parked cars."    Id.  The court recognized that the decision how best to implement such parking regulations was properly for legislative bodies and not the courts.  "State and municipal traffic officials, who know much more about these matters than federal judges do, have decided that towing is more effective in dealing with the parking violations of all kinds than just jacking up the fines further would be, and we cannot say that this judgment is not a reasonable one."    Id
                

No circuit has decided whether a pre-towing notice is required before an apparently abandoned car may be towed. ¹ There is, however, a three-judge district court case within the Seventh Circuit which holds that "due process requires that notice and an opportunity for a hearing be accorded to owners of abandoned vehicles prior to towing." Graff v. Nicholl, 370 F.Supp. 974, 983 (N.D.Ill.1974). In commenting upon this case, the Seventh Circuit in Sutton distinguished it from cases involving illegally parked cars:

Our holding is not inconsistent with Graff v. Nicholl, 370 F.Supp. 974 (N.D.Ill.1974), a three-judge district court decision in this circuit which holds that notice and an opportunity to be heard are required before an abandoned car may be towed. Advance notice is feasible in the case of abandoned cars because they are not about to be moved by their owners--that is, of course, the very reason why the authorities take an interest in abandoned vehicles. The appellants told us at oral argument that the reason they have withdrawn their appeal from the part of the district judge's injunction that requires notice before towing an abandoned car is that they decided it would not be difficult to comply with. But advance notice is infeasible in the case of an illegally parked car; the car will be gone by the time the owner is notified, no matter how efficient the notification process is.

Sutton, 672 F.2d at 647.

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 We acknowledge...