Stypmann v. City and County of San Francisco

• Citation: 557 F.2d 1338
• Decision Date: 21 July 1977
• Docket Number: No. 74-1844,74-1844
• Parties: Richard STYPMANN et al., Plaintiffs-Appellees, v. The CITY AND COUNTY OF SAN FRANCISCO et al., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1338

557 F.2d 1338

Richard STYPMANN et al., Plaintiffs-Appellees, v. The CITY AND COUNTY OF SAN FRANCISCO et al., Defendants-Appellants.

No. 74-1844.

United States Court of Appeals Ninth Circuit.

July 21, 1977.

James Murray, Tiburon, Cal., Burk E. Delvanthal, Deputy City Atty., San Francisco, Cal., argued, for defendants-appellants.

David C. Moon, S. F. Neighborhood Legal Assistance Foundation, San Francisco, Cal., argued, for plaintiffs-appellees.

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

Before BROWNING, ELY and ANDERSON, Circuit Judges.

BROWNING, Circuit Judge:

Appellees filed this class action under the Civil Rights Act, 42 U.S.C. § 1983, against officials of the City and County of San Francisco, California, a garage owner in San Francisco, a garage owner in Sausalito, California, and the president of the San Francisco Tow Car Association. ¹ Appellees challenged the constitutionality of the provisions of the California Vehicle Code authorizing removal of privately owned vehicles from streets and highways without prior notice or opportunity for hearing, and of section 22851 establishing a possessory lien for towage and storage fees without a hearing before or after the lien attaches. ²

In the course of the litigation, appellees abandoned their attack upon those provisions of the Vehicle Code authorizing the initial seizure and tow without a prior hearing, and confined their objection to the provision of section 22851 creating a possessory lien for towing and storage charges. Their complaint was then dismissed as to the city officials.

Also in the course of the litigation, and apparently in response to it, the City and County of San Francisco adopted an ordinance providing that a person "unable to pay" towage fees may obtain a hearing on the underlying traffic citation within five days of the time he notifies the Traffic Fines Bureau that he intends to challenge the citation and that he is financially unable to redeem his vehicle from storage. If the owner is found not guilty and the traffic citation dismissed, the vehicle is to be returned, and towing and storage charges are to be paid by the city. San Francisco Traffic Code § 160.01.

The district court granted summary judgment for appellees, striking down both section 22851 and the San Francisco ordinance, because they deprived vehicle owners of the use of their vehicles without prior notice or hearing and did not involve one of those "extraordinary situations" justifying deprivation of a property interest without prior notice and hearing. The court relied upon Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), and Fuentes v. Shevin, 407 U.S. 67, 90-92, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). ³ This appeal followed.

There is no merit in appellants' suggestion that a three-judge district court was required to hear this case. See 28 U.S.C. § 2281. ⁴ Generally, a three-judge court need not be convened to determine whether a declaratory judgment should issue. ⁵ In this case injunctive relief was also sought and granted, but the three-judge requirement applies only when an injunction "restrain(s) the action of any officer of such State," Hall v. Garson, 430 F.2d 430, 433, 442 (5th Cir. 1970); see Hernandez v. European Auto Collision, Inc., 487 F.2d 378, 382 (2d Cir. 1973), ⁶ and the injunction granted by the district court runs only against private towing companies.

Nor is there substance in appellants' argument that the state action required for jurisdiction under 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983 is lacking. A police officer makes the initial determination that a car will be towed and summons the towing company. The towing company tows the vehicle only at the direction of the officer. The officer designates the garage to which the vehicle will be towed. The officer notifies the owner that his vehicle has been removed, the grounds for the action, and the place of storage. The towing company detains the vehicle and asserts the lien for towing and storage charges pursuant to a statutory scheme designed solely to accomplish the state's purpose of enforcing its traffic laws. Thus, the private towing company is a "willful participant in a joint activity with the State or its agents," United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 1157, 16 L.Ed.2d 267 (1966); see Culbertson v. Leland, 528 F.2d 426 (9th Cir. 1975); and there is a "sufficiently close nexus between the State and the challenged action of the (towing company) so that the action of the latter may be fairly treated as that of the State itself." Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 453, 42 L.Ed.2d 477 (1974). ⁷

We turn to the merits of the constitutional claim.

Appellants concede that due process protections apply to the detention of private automobiles. Loss of the use and enjoyment of a car deprives the owner of a property interest that may be taken from him only in accordance with the Due Process Clause. ⁸ Due process strictures must be met though the deprivation be temporary. ⁹

The parties disagree only as to the particular process that is due. We agree with the district court that the procedural protections afforded by the California statute and San Francisco ordinance are not constitutionally sufficient; but we reach this conclusion by a somewhat different route than that taken by the district court.

In our view this case does not present the issue of whether a hearing is required before the seizure occurs. The seizure depriving the car owner of use of his property occurs when the vehicle is taken under tow on the street. Appellees have elected not to contest the right of the state to seize vehicles summarily and tow them to a garage. ¹⁰ For purposes of this case, therefore, the towkeeper is in lawful possession. ¹¹ The occasion for possible application of the "extraordinary situations" test has passed. Whether the post -seizure hearings available under the California statute and San Francisco ordinance satisfy due process requirements is to be determined by examining the process afforded in light of the interests of the private property owner and the government. Lee v. Thornton, 538 F.2d 27, 31 (2d Cir. 1976). ¹²

The private interest in the uninterrupted use of an automobile is substantial. 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. ¹³

The public interest in removing vehicles from streets and highways in the circumstances specified in the traffic code is also substantial, though differing in the various situations in which removal is authorized. Moreover, the government has a considerable interest in imposing the cost of removal upon the vehicle owner and retaining possession of the vehicle as security for payment. But neither of these interests is at stake here. The only government interest at stake is that of avoiding the inconvenience and expense of a reasonably prompt hearing to establish probable cause for continued detention of the vehicle. ¹⁴ The fact that San Francisco has undertaken to provide a hearing in some circumstances suggests that it is neither unduly burdensome nor unduly costly to do so. ¹⁵

Despite the greater relative weight of the private interests involved, the statute affords virtually no protection to the vehicle owner.

The vehicle may be recovered only by paying the towing and storage fees; there is no provision for obtaining its release by posting bond. ¹⁶ There is no provision that would mitigate the loss if the detention is unlawful or fraudulent. ¹⁷ The statute establishes no procedure to assure reliability of the determination that the seizure and detention are justified. ¹⁸ A police officer must authorize the tow, but he also "gathers the facts upon which the charge of ineligibility rests," and his judgment cannot be wholly neutral. Goldberg v. Kelly, 397 U.S. 254, 269, 90 S.Ct. 1011, 1021, 25 L.Ed.2d 287 (1970). Moreover, no official participates in any way in assessing the storage charges or enforcing the lien. No hearing is afforded and no judicial intervention is provided by section 22851 at any stage before or after seizure unless and until the vehicle is sold to satisfy the lien. The only hearing available under any other state procedure may be long deferred, and the burden of proof is placed upon the owner of the property seized rather than upon those who have seized it. ¹⁹

" The fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner.' " Mathews v. Eldridge, supra, 424 U.S. at 333, 96 S.Ct. at 902, quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965). Seizure of property without prior hearing has been sustained only where the owner is afforded prompt post-seizure hearing at which the person seizing the property must at least make a showing of probable cause. ²⁰ Neither this nor any other procedural protection is afforded here that might prevent or ameliorate a temporary but substantial deprivation of the use and enjoyment of a towed private vehicle.

An early hearing, on the other hand, would provide vehicle owners the opportunity to test the factual basis of the tow and thus protect them against erroneous deprivation of the use of their vehicles. The only state interest adversely affected by requiring an early hearing avoidance of the administrative burden and expense is not enough in these circumstances to warrant denying such a hearing. We conclude, therefore, that section 22851 does not comply with due process requirements.

Nor is the statute saved by the San Francisco ordinance. ²¹ A five-day delay in justifying detention of a private vehicle is too long. Days, even hours, of unnecessary delay may impose...