Weinrauch v. Park City, 82-1384

• Decision Date: 28 December 1984
• Docket Number: No. 82-1384,82-1384
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: Sandy WEINRAUCH and Robert Cohen, Plaintiffs-Appellants, v. PARK CITY, a City chartered under the laws of the State of Utah, Officer John Newland, in his individual capacity and in his capacity as a Park City Police Officer, Officer Benzon, in his individual capacity and in his capacity as a Park City Police Officer, and Mike Speers, in his individual capacity and in his capacity as Agent for Park City, Defendants-Appellees.

Page 357

751 F.2d 357

Sandy WEINRAUCH and Robert Cohen, Plaintiffs-Appellants,

v.

PARK CITY, a City chartered under the laws of the State of

Utah, Officer John Newland, in his individual capacity and

in his capacity as a Park City Police Officer, Officer

Benzon, in his individual capacity and in his capacity as a

Park City Police Officer, and Mike Speers, in his individual

capacity and in his capacity as Agent for Park City,

Defendants-Appellees.

No. 82-1384.

United States Court of Appeals, Tenth Circuit.

Dec. 28, 1984.

Brian M. Barnard, Salt Lake City, Utah (John W. Porter, Salt Lake City, Utah, with him on the brief), for plaintiffs-appellants.

Craig S. Cook, Salt Lake City, Utah (Max D. Wheeler of Snow, Christensen & Martineau, Salt Lake City, Utah, with him on the brief), for defendants-appellees.

Before BARRETT, BREITENSTEIN and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

Sandy Weinrauch and Robert Cohen brought this action under 42 U.S.C. Sec. 1983 (1982) against Park City, Utah, two of its police officers, and Mike Speers. The district court granted summary judgment for defendants. Plaintiffs appeal and we affirm.

The essential facts are undisputed. Weinrauch and Cohen drove from Salt Lake City to Park City for a day of skiing. They parked Weinrauch's car illegally. Responding to a bus driver's complaint, Officer John Newland cited Weinrauch's vehicle for obstructing traffic and had Speers impound the car and tow it away. Speers ran a towing service and had agreed with the City to impound cars upon City request and to tow them to a lot. Seven other cars were ticketed that day, and six were towed.

When plaintiffs returned from skiing they discovered the car missing. Weinrauch called the police to report it stolen. The dispatcher told her that the car had been impounded and Weinrauch asked to meet with Newland. Newland told Weinrauch that she could recover her car by paying Speers a twenty dollar towing fee and five dollar bail on the ticket.

Plaintiffs went to the impound lot, found no one there in the attendant's office, loaded their ski equipment on the car, and drove away. Shortly thereafter, the auto was reported stolen and a stolen car message went out on the police radio describing the vehicle and the location from which it was taken. Officers Newland and Ray Benzon responded to the call and began pursuing the car, coordinating their efforts by radio. Speers also heard the police report on his police scanner. He concluded that the car was from the impound lot and began to pursue it himself to recover his towing fee. He did not communicate with the police officers and they were unaware of his efforts until they saw his tow truck and the Weinrauch auto on the highway.

Speers drew along beside Weinrauch's car several times on the road, waving at plaintiffs in an attempt to have them pull over. After Newland approached Weinrauch's car with his lights and siren in operation, plaintiffs pulled over and stopped. Speers parked his tow truck in front of the car and shortly thereafter Benzon arrived.

The parties agree that the roadside discussion was heated. Newland recognized Weinrauch as the owner of the car and realized that the car had not been stolen. Cohen identified himself as a lawyer and stated his belief that the impoundment procedure was illegal. Speers insisted that he would tow the car back to Park City unless plaintiffs paid the twenty-five dollars, and Newland told plaintiffs he thought Speers would be within his rights in doing so. Benzon agreed. Plaintiffs paid Speers the fee and the bail, received a receipt, and everyone drove off. The incident lasted five or ten minutes. At a subsequent hearing Weinrauch was found guilty of the parking violation.

In the complaint, Weinrauch alleges that the impoundment procedure denied her due process because she was not given a hearing before she was required to either pay the towing fee or leave the car impounded. ¹ Both plaintiffs claim that they were denied due process because Newland and Benzon abused their authority during the roadside incident and because Speers allegedly committed an assault upon them.

The district court concluded that the constitutional claims premised on the deprivation of Weinrauch's automobile without a hearing were too insubstantial to be cognizable under section 1983 because "[t]he relief which could have been obtained at such a hearing was in fact obtained by self help prior to any substantial injury allegedly incurred by the plaintiffs." Rec., vol. I, at 122. The court further concluded that Speers was not acting under color of law within the meaning of section 1983 when he pursued plaintiffs down the highway and obtained the twenty-five dollars.

On appeal, plaintiffs renew their argument that Weinrauch was deprived of her property without due process because she was required to pay the towing fee and bail before she was afforded a hearing, citing as support Stypmann v. City and County of San Francisco, 557 F.2d 1338 (9th Cir.1977). Weinrauch misperceives both the facts and the holding of that case. In Stypmann the impoundment procedure was held unconstitutional because no hearing was provided at which the validity of the seizure and detention could be determined, either before or after impoundment. Subsequently the statute at issue there was amended to provide a post-seizure hearing within forty-eight hours of request. In Goichman v. Rheuban Motors, Inc., 682 F.2d 1320 (9th Cir.1982), the Ninth Circuit upheld the constitutionality of this post-seizure hearing. The court rejected the plaintiff's argument that he was deprived of his property without due process when the towing company refused to return his car unless he paid the towing charge, the same argument put forth by Weinrauch here. The court pointed out that

"[w]ere we to require immediate release on demand, as proposed by Goichman, we would jeopardize the government's 'considerable interest in imposing the cost of removal upon the vehicle owner and retaining possession of the vehicle as security for payment,' an interest not at stake in Stypmann. Release-on-demand effectively requires the city either to provide on-the-spot hearings or to secure the cost of towage itself. Either option would prove burdensome and expensive. ...