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Monthly Law Journal Article: Police Interaction with Homeless Persons – Part I – Sleeping and Possessions, 2008 (7) AELE Mo. L.J. 101.
A private non-profit
corporation that contracted with a city to provide animal welfare services
received complaints about conditions at a local pet store. Employees of
the company found, during a visit to the store, that the animals there
lacked water and that the air conditioning was not working. They removed
animals and business records from the store and revoked the store's permit
to be a pet dealer. The store sued the city, the company, and its employees
(in both their individual and official capacities), claiming that the warrantless
seizures violated the Fourth Amendment and that removing the animals and
revoking the store's permit without a prior hearing violated procedural
due process. A federal appeals court held that one employee, who acted
solely as a private animal-welfare officer, could not assert a qualified
immunity defense to a personal capacity claim. Two other employees, however,
acted both as private animal-welfare officers and also as specially commissioned
city police officers. They were granted summary judgment on the basis of
qualified immunity on the procedural due process claims, and Fourth Amendment
claims regarding the seizure of the animals. One was granted summary judgment
on claims regarding the seizure of the business records, while a second
employee was denied summary judgment on the same claims. Qualified immunity
was not available to any employees on the official capacity claims. The
city had a strong interest in immediately seizing the animals to protect
them from squalid and hot conditions without water, and the post-deprivation
hearing was an adequate remedy, so their removal did not violate due process
or violate the Fourth Amendment. The revocation of the store's permit violated
due process, however, as neither a pre-deprivation or post-deprivation
hearing was offered. United Pet Supply, Inc. v. City of Chattanooga, #13-5181,
2014 U.S. App. Lexis 17900, 2014 Fed. App. 240P (6th Cir.).
When a man was taken by ambulance from his home to a hospital, his two dogs remained behind. In the emergency room, and concerned as to whether he would live, he claimed that a deputy sheriff pressured him to sign a release form regarding his dogs, which authorized county animal control to destroy them, which he didn't realize, as he did not have his glasses and therefore could not read the form. The dogs were killed before he recovered, and he sued the deputy, the hospital, the sheriff, and the county's animal shelter provider. While the trial court granted summary judgment to all defendants, an intermediate appeals court ruled that, while state law official immunity protected the deputy from liability for his decision to ask the plaintiff to sign the form, it did not protect him from liability for the execution of his decision to do so. The Supreme Court of Georgia disagreed. It noted that the owner said that the deputy told him to "Just sign this d* *n form," when the owner was under medication. Such facts, if true, could raise a question of whether the deputy was engaged in an act performed with malice or an intent to injure, which could defeat the immunity. Roper v. Greenway, #S12G2030. 2013 Ga. Lexis 951.
The owner of a truck sued a towing company for allegedly wrongfully holding onto his truck for 38 days and requiring him to pay $1,385 to get it back. The sheriff's department's decision to impound, tow, and store the truck was reasonable under the community caretaking doctrine. The "sheriff's department's impounding of the truck did not violate plaintiff's right to travel, was not an unreasonable seizure, and did not misapply the Vehicle Code to his noncommercial use of the truck." The plaintiff lacked registration for his light truck and did not have a driver's license, and the fact that he did not use his truck to transport people or property for hire did not exempt him from applicable licensing laws. Halajian v. D&B Towing, #F063071, 209 Cal. App. 4th 1, 2012 Cal. App. Lexis 949 (Cal. App. 5th Dist.).
Homeless persons sued a city, claiming that it violated their rights under the Fourth and Fourteenth Amendments by routinely seizing their unabandoned personal property temporarily left on public sidewalks and immediately destroying it. A federal appeals court upheld a preliminary injunction against these practices granted by the trial court. The injunction required that unabandoned personal property seized could not be destroyed without giving the owners a prior meaningful notice and opportunity to be heard. The homeless persons' property was protected from unlawful seizure by the Fourth Amendment and could not be destroyed without complying with due process requirements. Lavan v. City of Los Angeles, #11-56253, 2012 U.S. App. Lexis 18639 (9th Cir.).
A man returning home to the U.S. after a trip abroad had his laptop computer seized by an Immigration and Customs Enforcement agent. The hard drive of the equipment failed while being detained, which destroyed the plaintiff's business software and other information on the machine. He filed a lawsuit against the U.S. government seeking damages for an unlawful Fifth Amendment taking as well as for breach of contract. A federal appeals court dismissed both claims, finding no plausible mutual intent to contract and that there was no voluntary delivery of his property, as required for a bailment contract. The seizure of the computer also did not amount to a taking of it for a public purpose giving rise to a right to compensation. Kam-Almaz v. U.S., #2011-5059, 2012 U.S. App. Lexis 12581 (Fed. Cir.).
During an arrest, officers seized a pistol owned by the arrestee. The weapon was not returned after the prosecution against him was dropped. He claimed that the failure to return his weapon and an alleged prosecutor's policy not to return firearms seized during arrests violated the Second Amendment right to keep and bear arms. A federal appeals court rejected these claims, since the "right protected by the Second Amendment is not a property-like right to a specific firearm." The plaintiff did not show that the defendants interfered in any way with his right or ability to obtain or retain other firearms. The court also found no violation of due process, since there were adequate remedies under state law for any wrongful withholding of personal property. Houston v. City of New Orleans, #11-30198, 2012 U.S. App. Lexis 5370 (5th Cir.),
A man active in advocating the right to carry concealed firearms in public openly carried a holstered handgun into retail stores on two occasions. Both times, he was arrested for disorderly conduct and had his gun confiscated. He was not prosecuted and each time his gun was eventually returned. He claimed that his conduct was not disorderly and was protected under the federal and state constitutions. The officers were entitled to qualified immunity on unlawful arrest claims. The officers could not have anticipated that the U.S. Supreme Court would subsequently issue Second Amendment opinions raising an issue about whether his conduct was lawful and were not required to balance alleged firearms rights under the Wisconsin state constitution against the disorderly conduct law. The officers also were not liable for violating the plaintiff's rights under the federal Privacy Act by requesting his Social Security number during one of the incidents, since it was not clearly established that they had to inform him whether the disclosure of his Social Security number was voluntary or mandatory, and they had not denied him any "right, benefit, or privilege" based on his refusal to disclose the number. The court also rejected claims for unlawful seizure of his property, the handgun. Gonzalez v. Village of West Milwaukee, #10-2356, 2012 U.S. App. Lexis 1965 (7th Cir.).
An officer stopped a motorist and took him into custody on an outstanding arrest warrant. In the course of the arrest, the officer retrieved the man's legally purchased and licensed handgun from his vehicle and confiscated it. The charges against the arrestee are later dropped, but the arrestee is told that his gun will not be returned and that he should go to court to seek a replevin order if he wants it. The initial seizure of the gun pursuant to a valid arrest was not a violation of due process, but the court rules that the subsequent refusal to return the weapon with no legal grounds to support it could form the basis for a valid due process claim. When "an established state procedure deprives one of property, post-deprivation remedies generally fail to satisfy" due process requirements. The court also holds, however, that the city could not be held liable for a violation of the Second Amendment, since that "confers a right only to keep and bear arms generally, not a right to possess a particular firearm." Walters v. Wolf, #10-3597, 660 F.3d 307 (8th Cir. 2011).
Two undercover animal services officers visited a couple's home, where they observed some puppies that the couple advertised in a local newspaper. The couple had bred their two pet bulldogs to produce the puppies for sale. Uniformed animal service officers then knocked on the door, entering and seizing all nine of the dogs, claiming, erroneously, that the couple had violated an ordinance about breeding dogs. All dogs were taken to an animal shelter, where they had microchips placed in them, and the adult dogs were neutered. The couple was asked for over $1,000 for the return of the dogs. It turned out that the couple was not violating the ordinance, as they were not operating an unlicensed Class A kennel, as defined in the ordinance. The initial entry by the undercover officers did not violate the Fourth Amendment, as it was pursuant to the couple's newspaper ad inviting the public to come inspect the dogs for sale. The subsequent entry by the uniformed officers without a warrant, for law enforcement purposes, however, raised valid Fourth Amendment claims. The officers may have also violated procedural due process by depriving the couple of their property, the dogs and the ability to breed them, without written notice of the alleged violation on which the seizure was based. O'Neill v. Louisville/Jefferson County Metro Government, #10-5699, 2011 U.S. App. Lexis 22530 (6th Cir.).
A county official's failure to provide any notice and an opportunity to respond to the estate before he entered the home of a recently deceased man and removed personal property, some of which was sold and some of which he stored violated due process, when there were no extraordinary circumstances justifying these actions. The official, the county public administrator, was, however, entitled to qualified immunity for making a warrantless entry into the home after being informed of the death, for the purpose of securing the property of the estate, although not for taking it away. Mathis v. County of Lyon, #08-17302, 2011 U.S. App. Lexis 1956 (9th Cir.).
A number of arrestees sued the city of Chicago, challenging its' policies governing the return of seized funds to arrestees. Overturning summary judgment for the defendant city in part, a federal court found that notices that the city sends out to persons regarding how to claim seized funds were misleading and provided incomplete information, in possible violation of due process. Further, there were conflicts in the evidence provided on the due process issue, and deficiencies in the city's purported legal justification for shifting the burden to arrestees of having to prove their entitlement to the return of their seized money at the conclusion of their criminal prosecutions. Restitution claims, however, were properly dismissed, as the city had now returned the full amounts the plaintiffs requested in their restitution claims. Gates v. City of Chicago #08-1455, 2010 U.S. App. Lexis 19940 (7th Cir.).
A California state statute that authorizes the 30-day impoundment of vehicles whose drivers have had their licenses revoked or suspended for some, but not all, violations of the state motor vehicle code does not violate the equal protection guarantees of the U.S. or California Constitutions, violate due process, or constitute an unlawful seizure. The legislature acted rationally in authorizing the impoundment of vehicles whose drivers have licenses revoked or suspended for major offenses related to traffic safety, such as DUI, but not when their license suspension is based on minor offenses or on offenses unrelated to driving, such as the failure to pay child support or civil judgments. Alviso v. Sonoma County Sheriff's Dep't, #A126241, 2010 Cal. App. Lexis 1018 (1st Dist.).
A homeowner changed the locks on her marital home while undergoing a divorce. Her husband, accompanied by police officers, came to the home to get some of his property. The homeowner was ordered by the officers to open the door, and they remained on the scene for several hours while the husband removed furniture and other items. When the divorce was finalized, the wife was awarded most of the property removed. She sued the city and the officers, alleging a denial of due process and gender discrimination. Rejecting these claims, a federal appeals court found that the officers had properly informed the plaintiff that her husband had a right to enter his own home and remove property, so long as no breach of the peace occurred. There was also no evidence that the plaintiff was mistreated based on her sex, and she herself testified that she did not know the reason for the officers' actions. Johnson v. Wyant, #J09-12662, 2010 U.S. App. Lexis 1758 (Unpub. 11th Cir.).
After the issuance of a temporary order of protection against him, the plaintiff surrendered to the sheriff's department three rifles, three handguns, a shotgun, and some shooting accessories. When he later tried to retrieve this property, he found out that the guns had been destroyed, allegedly in compliance with an applicable statutory scheme. An appeals court found that the destruction of the handguns was, in fact, authorized by the statute, but that the destruction of the shooting accessories, shotgun, and rifles was not authorized, as they did not fall within the meaning of "firearms" as defined by the law in question. The plaintiff, therefore, validly asserted a federal civil rights claim against the sheriff's department for depriving him of a protected property interest. The sheriff, however, was entitled to qualified immunity from liability, since he would not have known that these actions violated the plaintiff's constitutional rights. Maio v Kralik, #2008-02532, 2009 N.Y. App. Div. Lexis 8062 (2nd Dept.).
A federal appeals court ruled that New York City, acting after the terrorist attacks of September 11, 2001, may have violated the constitutional due process rights of a gun dealer whose business was shut down for security reasons and whose dealer's license was suspended. The gun dealer claimed that the 58-day shutdown damaged her business and resulted in lost profits. While a federal appeals court overturned the dismissal of her due process claims, it upheld the dismissal of her Fourth Amendment claim arising from the warrantless search of her business premises, as it was objectively reasonable and carried out pursuant to existing regulations. Based on the facts presented, however, the appeals court found that the city violated due process in denying the plaintiff sufficient notice and an opportunity for a post deprivation hearing concerning the suspension of her license. The notice that was provided merely stated the conclusion that security at the business was inadequate, with no specifics concerning the purported problems. This was constitutionally inadequate notice, and the gun dealer had a constitutionally-protected property interest in her license. On remand, the trial court was directed to enter summary judgment for the plaintiffs on the due process claim and to conduct further proceedings as to the amount of damages to be awarded. Spinelli v. City of New York, #07-1237, 2009 U.S. App. Lexis 17640 (2nd Cir.).
A deputy sheriff, acting without a warrant, ordered a man to destroy marijuana plants he was growing in his home. The man, a qualified medical marijuana patient under California state law, was a member of a seven-patient group that agreed to contribute comparable amounts of money, property, and labor to the cultivation of the marijuana, and then to share the crop. The plaintiff contended that the deputy, in forcing him to destroy all but 12 of 41 medical marijuana plants, violated his state constitutional rights. Upholding the trial court's refusal to dismiss the lawsuit, a California appeals court ruled that, under state law, the question of whether the deputy had probable cause to issue the order to destroy the property had to include a consideration of the plaintiff's qualification as a medical marijuana patient. It also noted that the deputy was acting under color of California law, not federal law, so that would be the basis for determining whether his conduct was proper. County of Butte v. Superior Court of Butte County (Williams, Real Party in Interest), #C057152, 2009 Cal. App. Lexis 1079 (3rd Dist.).
Public housing residents claimed that "precipitous" seizures and "cruel" killings of their pet cats and dogs by city personnel violated their Fourth and Fourteenth Amendment rights. Upholding the denial of qualified immunity to a city's mayor on procedural due process and Fourth Amendment claims, a federal appeals court found that killing a pet without the owner's consent is a Fourth Amendment seizure. The appeals court, relying on caselaw from other federal circuit courts of appeal, rejected the argument that the law on the subject was not clearly established. The court did, however, grant the mayor qualified immunity on the plaintiffs' substantive due process claims because of his lack of sufficiently direct personal involvement in the killings, applying the analysis adopted by the U.S. Supreme Court in Ashcroft v. Iqbal, #07-1015, 129 S. Ct. 1937 (2009). Maldonado v. Fontanes, #08-2211, 2009 U.S. App. Lexis 12716 (1st Cir.).
Police officers were entitled to qualified immunity for their actions in seizing a vehicle from a parking lot and returning it to the purported owner, who had insurance documents and a vehicle registration showing that the vehicle was hers. She also showed the officers a court-issued summons, which indicated that the vehicle was being operated in violation of state law and without her permission. The possessor of the vehicle claimed that carrying out the seizure without a warrant violated his Fourth Amendment rights, but the officers could reasonably have believed that their actions were legal. Bumgarner v. Hart, #08-1724, 2009 U.S. App. Lexis 4650 (Unpub. 3rd Cir.).
Man's claim that a county animal shelter mistakenly killed his pet dog was insufficient to show a violation of the due process clause of the Fourteenth Amendment or the Fourth Amendment, since the claim essentially was for negligence or accident, rather than a violation of civil rights. Raiford v. Greenville County Animal Shelter, #6:09-0287, 2009 U.S. Dist. Lexis 20367 (D.S.C.), magistrate's recommendation adopted by Raiford v. Greenville County Animal Shelter, 2009 U.S. Dist. Lexis 20173 (D.S.C.).
Possessor of vehicles impounded by officer after he was arrested for having stolen property failed to show that the seizure was not supported by probable cause or violated clearly established law. As a result, the officer was entitled to qualified immunity from liability. Hendrickson v. Thurston County, No. C06-5374, 2008 U.S. Dist. Lexis 105475 (W.D. Wa.).
County officials were entitled to qualified immunity in lawsuit over the seizure by county animal control officers of several hundred rabbits in a forfeiture proceeding from a criminal defendant. They had a reasonable belief that the seizure was proper. Fourth Amendment search and seizure claims were timed barred under a two-year statute of limitations. Claims asserted under state law, however, could proceed under the Oregon Tort Claims Act. Scott v. Jackson County, No. 06-35042, 2008 U.S. App. Lexis 22685 (Unpub. 9th Cir.).
When a police department seized handguns in 1996 following a suicide, the decedent also left a note specifying who he wanted to have the weapons, a person subsequently named as the co-personal representative of his estate. One of the weapons was released to someone claiming ownership, and the others were destroyed in 2003 on the basis that they were unclaimed property. The estate representative only filed a claim for the guns in 2005, and she filed a federal lawsuit in 2008, claiming that the police department breached a duty to notify her concerning the disposition of the weapons. The court ruled that her claims were barred by a two-year statute of limitations, and that any "tolling" (extension" of the time limit would only have applied until the time when she first had the ability to file a claim on behalf of the estate, following her appointment in 2000. Stone v. Whitman, Civil Action No. 07-cv-01611, 2008 U.S. Dist. Lexis 69178 (D. Colo.).
After the plaintiff was awarded compensatory and punitive damages for the seizure and destruction of his property by the city, allegedly without due process, a trial court found that a quarter to a third of the time spent on research, appeal, and trial preparation, and half of the time spent on investigation was unnecessary, as well as reducing the attorneys' hourly rate to the rate of a paralegal for time spent summarizing depositions, and reducing the attorneys' hourly rate from $300 to $250 per hour. A federal appeals court found that the trial judge failed to adequately explain the reductions made for supposedly duplicative work, or for time spent doing investigation and interviews. The trial court also improperly based part of its reduction on speculation concerning how another law firm would have staffed the case, and applied its own "de facto" policy of awarding $250 per hour in civil rights cases. Further proceedings were ordered on the amount of attorneys' fees to be awarded. Moreno v. City of Sacramento, No. 06-15021, 2008 U.S. App. Lexis 15951 (9th Cir.).
Married couple failed to show that officers violated their clearly established rights in allegedly seizing the husband's concealed weapon permit and guns from their home, so that the officers were entitled to qualified immunity. Their citing of general caselaw on the subject of warrantless searches of homes was insufficient to defeat the officers' claim for qualified immunity. The couple also failed to present any evidence that the officers were authorized to return the property they seized, as they demanded. Snider v. Lincoln County, No. 07-6196, 2008 U.S. App. Lexis 12116 (Unpub. 10th Cir.).
A warrantless search of land used for hunting purposes was not a violation of the Fourth Amendment rights of a man who held a hunting license for the land, as the search was justified under the "open fields" doctrine and the "plain view" doctrine. The sheriff and other law enforcement personnel also had probable cause to believe that plants which the licensee had planted on the land (kenaf seed) in order to attract wildlife were marijuana, since they were "virtually indistinguishable" from marijuana plants. A claim for the alleged unlawful taking and destruction of the plants could not be pursued in the federal civil rights lawsuit since the plaintiff had not attempted to obtain compensation through existing adequate state law procedures. Waltman v. Payne, No. 05-60588, 2008 U.S. App. Lexis 14757 (5th Cir.).
In a lawsuit filed on behalf of a class of homeless persons whose property had been taken and destroyed in a sweep of public property by the city, its police, or its sanitation division, the trial court certified a class. The plaintiffs claimed that these actions violated their Fourth and Fourteenth Amendment rights. The court ruled that if the homeless class established that their personal property was destroyed immediately after seizure while property belonging to others was not destroyed in this manner, this would show a violation of the right of equal protection of law under the Fourteenth Amendment. Kincaid v. City of Fresno, No. CV-F-06-1445, 2008 U.S. Dist. Lexis 38532 (E.D. Cal.).
A county sheriff could not be sued, on the basis of his role as supervisor of deputies who arrived on the scene after FBI agents arrested the plaintiff for bank robbery, and impounded the getaway car, resulting in the impound lot later selling the vehicle after sending the arrestee a notice and publicly posting one. Even if the deputies were found to have violated the plaintiff's rights, the sheriff did not personally participate in, authorize, or acquiesce in their actions. The court also rejected the argument that the impounding of the vehicle under these circumstances constituted conversion since a law enforcement officer may tow and impound a vehicle following a driver's arrest for bank robbery or similar offenses. Eaton v. Whetsel, No. 07-6262, 2008 U.S. App. Lexis 11367 (Unpub. 10th Cir.).
U.S. government was not liable for alleged damages to hundreds of handguns and long guns, as well as ammunition and packaging seized from a man's storage spaces by agents of the Bureau of Alcohol, Tobacco, and Firearms (ATF) under search warrants. A detention of goods exception to the waiver of sovereign immunity in the Federal Tort Claims Act, 28 U.S.C. Sec. 1346(b) barred the claim. Also, another waiver of sovereign immunity in 28 U.S.C. Sec. 2680(c)(1)-(4) only applied to property seized solely for the purpose of forfeiture, and, in this case, while forfeiture was a possibility for some of the weapons, criminal investigation was also a legitimate purpose of the seizure of the guns. Foster v. U.S.A., No. 06-56843 2008 U.S. App. Lexis 8125 (9th Cir.).
The New York City Police Department was ruled to have violated the property rights of an auto finance company without due process of law by proceeding with a forfeiture proceeding concerning a vehicle seized for suspected use in criminal activity without providing the finance company with notice and an opportunity to be heard in the proceeding. The auto finance company allegedly had a valid security interest in the vehicle. Additionally, a delay by the city in going forward with the forfeiture proceeding deprived the plaintiff of property, since the value of the vehicle decreases over time. Ford Motor Credit Co. v. NYC Police Dept., No. 06-4600, 2007 U.S. App. Lexis 22607 (2nd Cir.).
Plaintiff could proceed with his claim that officers who seized a moped from his living room while executing a search warrant unconstitutionally deprived him of his property without due process of law, since it was not within the scope of the search warrant. The seizure of $142 from the plaintiff's pocket, however, fell within the scope of the warrant since it authorized the seizure of property constituting evidence of drug transactions, including currency. Cooper v. City of Fort Wayne, No. 1:06-CV-161, 2007 U.S. Dist. Lexis 81148 (N.D. Ind.).
A man's former roommate, either alone, or acting together with others, allegedly auctioned off a lot of his personal property without his consent, and without giving him any of the proceeds of the sale. The county sheriff and a county official, however, could not be held liable for violation of the property owner's constitutional rights in connection with the sale when they did not conduct the sale or actively assist it. Their alleged misconduct essentially amounted to failing to act to stop the sale, after the plaintiff objected to it. Their mere acquiescence in the actions of private parties was not a deprivation of property under color of state law for purposes of the Fourteenth Amendment. Jackman v. McMillan, No. 06-2474, 2007 U.S. App. Lexis 8880 (3rd Cir.).
A city ordinance providing for the forfeiture to the city of a car used to commit criminal actions prohibited by state law, such as solicitation of prostitution or acquiring controlled substances, was preempted by existing state statutes on the subject of forfeiture of vehicles, and void under a provision of the California state constitution. O'Connell v. City of Stockton, No. S135160, 2007 Cal. Lexis 7879.
Off-duty police officer's alleged conduct in entering the plaintiff's restaurant and seizing leased equipment was not governmental action for purposes of a federal civil rights lawsuit. The officer's actions were allegedly arranged with his uncle, who owned the building that the restaurant leased, and the officer acted purely as a private person. At the time of the incident, he was not in uniform, did not assert his police authority, and was motivated by his role as the nephew of the building owner. Mitchell v. Gieda, No. 06-2127, 2007 U.S. App. Lexis 2644 (3rd Cir.).
Secret Service officers who stopped a motorist based on an outstanding arrest warrant, and seized a bag including four prescription eyeglasses from his vehicle were within the definition of "any other law enforcement officer" in 28 U.S.C. Sec. 2680(c) of the Federal Tort Claims Act. The U.S. government, therefore, was protected from liability by this statutory provision barring liability for "detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer," on the motorist's claim concerning the alleged failure of the Secret Service to subsequently return the eyeglasses. Perez v. U.S., No. 06-CV-1508, 2007 U.S. Dist. Lexis 36843 (D.N.J.).
The county's lack of an official policy on conducting an inventory of personal property found in an impounded vehicle or on what to do when several parties claimed ownership over the property or the vehicle did not show deliberate indifference by the county to the rights of property owners. Further, even if a deputy's actions resulted in the loss or theft of personal property from the impounded car and trailer, as alleged, he was entitled to qualified immunity because the law on the issues presented was not clearly established at the time of the incident. Duvalt v. Taggart, No. 05-35086, 2006 U.S. App. Lexis 27253 (9th Cir.). [N/R]
Arrestees who actually received back money seized from them during their arrests could not pursue claims for restitution against city because their claims were moot, but class action concerning handling of such money could continue on claims for possible interest due, based on procedures used in connection with the return of the funds. Gates v. Towery, No. 04C2155, 2006 U.S. Dist. Lexis 77772 (N.D. Ill.). [N/R]
Three homeless women, evicted from homeless shelter by police without legal process at the request of the shelter's director were not "tenants" under Kentucky law, had no property interest in the premises, and, therefore, the officers' actions did not violate their due process rights. Thomas v. Cohen, No. 05-5072, 2006 U.S. App. Lexis 7938 (6th Cir.). [2006 LR Aug]
Police officers, in allegedly assisting the title holder of a boat in repossessing it from a contract purchaser, were not sufficiently involved in the incident to make the repossession governmental action supporting a claim for deprivation of property without due process of law. Additionally, even if they were found to have been sufficiently involved to make the repossession governmental action, it was not clearly established that their actions would violate the plaintiff's rights, entitling them to qualified immunity. Moore v. Carpenter, No. 04-3144, 404 F.3d 1043 (8th Cir. 2005). [N/R]
Enforcement by a city and county of a court "no-contact" order, entered against a man in a criminal proceeding for domestic assault, even though it prevented him from returning to his home, where he lived with the woman he was accused of assaulting, was not a "taking" of private property entitling him to compensation. The actions taken were carried out in enforcing a facially valid court order, and the defendants' employees could not make their own determination of the merits or enforceability of that order. Borlaug v. City of Cedar Falls, No. 05-6847, 710 N.W.2d 541 (Iowa App. 2006). [N/R]
In lawsuit over city's towing of apparently abandoned or junked vehicle from vacant lot, neither the lot owner nor his brother, who claimed he had an ownership interest in the car, had a valid federal civil rights claim. The lot owner's privacy rights were not violated by the towing, and his brother had no identifiable ownership interest in the vehicle which was sufficient to have put the city on notice that he claimed ownership. Benton v. City of Higginsville, No. WD 64861, 181 S.W.3d 190 (Mo. App. 2005). [N/R]
Plaintiff could not pursue federal civil rights claim for alleged failure of police officer to return $4,960 in funds he allegedly seized while executing a search warrant at her home when she failed to show that she had attempted to recover the funds through available state law remedies or that those remedies were somehow inadequate. Ali v. Ramsdell, No. 04-2797, 423 F.3d 810 (8th Cir. 2005). [N/R]
Federal court did not have jurisdiction over lawsuit by car theft victim claiming that his vehicle was stolen by a theft ring operated by employees of the D.C. police department and that fraud was committed against him by the employees allegedly not entering his car's vehicle identification number into a stolen vehicle database. These claims, filed in federal court on the basis of diversity jurisdiction, require a showing that the amount at issue exceeds $75,000, but the value of the plaintiff's car was only $500, and an award of punitive damages of over $69,500 would be constitutionally excessive, making it clear that the amount at issue in the lawsuit was far less than the required amount. Hunter v. District of Columbia, No. CIV.A. 04-0303, 384 F. Supp. 2d 257 (D.D.C. 2005). [N/R]
Police officer's videotaping of a traffic stop, and of a subsequent search of the motorist's home, did not violate any clearly established right of the motorist, who was stopped for speeding. The officer was also entitled to qualified immunity for asking the driver whether he would be willing to submit to a search of his person, vehicle and home, which revealed marijuana in his pocket. While the drugs were suppressed during a criminal prosecution against the motorist on the basis that the consent given was not voluntary, the federal appeals court ruled that a reasonable officer, under the circumstances, could have believed that the consent was consensual. The Vermont Supreme Court ordered further proceedings, however, as to whether officers engaged in unnecessarily destructive behavior of the motorist's property during the search of his home, and whether they violated his rights when, following the initial search of his home, they returned and allegedly forced their way in again over his wife's objections. Sprague v. Nally, No. 03-489, 882 A.2d 1164 (Vt. 2005). [N/R]
Certification of class action challenging City of Chicago's past procedures for retrieval of property seized during custodial arrests upheld, despite apparent change in policy and city's attempt to make the case moot by returning $172 in funds seized from the two named representative plaintiff arrestees. Plaintiffs sought, in addition to return of funds, interest, compensatory damages, and attorneys' fees. Gates v. Towery, No. 05-1079, 2005 U.S. App. Lexis 25677 (7th Cir.). [2006 LR Jan]
Police officer who stood outside residence while an estranged husband removed property when his wife was absent did not violate the Fourth Amendment. He had no reason to know that the husband would either remove property that was not his or vandalize the wife's property. Pepper v. Village of Oak Park, No. 04-3948, 2005 U.S. App. Lexis 26050 (7th Cir.). [2006 LR Jan]
Impoundment of car from the owners' driveway after an officer observed the husband teaching his unlicensed wife how to drive was an unreasonable seizure unjustified by the "community caretaking" doctrine. Summary judgment for city and towing company in lawsuit was improper. Miranda v. City of Cornelius, No. 04-35940, 2005 U.S. App. Lexis 24666 (9th Cir.). [2006 LR Jan]
Despite claims by owner of vehicles seized for forfeiture that criminal investigator told him that the release of the vehicles would be conditioned on his agreement to testify falsely against others in a criminal investigation, the owner did not show any deprivation of a due process right. There was no evidence that the investigator had any power over the continuation or dismissal of the forfeiture action or that he actually communicated with those pursuing forfeiture of the vehicles. Wrench Transp. Services, Inc. v. Bradley, No. 04-1772, 136 Fed. Appx. 521 (3rd Cir. 2005). [N/R]
While there were factual issues as to whether a homeowner and his children were unlawfully detained and whether protective sweep of premises by deputies while executing eviction order was unlawful, the deputies were not liable for private movers' alleged theft of some of the homeowner's private property while removing it from the premises. There was no evidence that the deputies either saw the alleged misappropriation or that they conspired with the movers to accomplish it. Thomas v. Sheahan, No. 04C4865, 370 F. Supp. 2d 704 (N.D. Ill. 2005). [N/R]
Officer's shooting and killing of man's pet dog was not an unreasonable seizure under the Fourth Amendment. The officer could have, under the circumstances, reasonably believed that the dog posed an imminent threat to his safety, based on its weight of 55 to 60 lbs, its speed in traveling 15 feet in five seconds, and the fact that it would have reached him in five seconds had he not shot it. While the dog owner did yell that the dog would not hurt the officer, the officer did not have to wait until the dog was within biting range before taking action to protect himself. Dziekan v. Gaynor, No. 3:03CV1486, 376 F. Supp. 2d 267 (D. Conn. 2005). [N/R]
Officer did not violate rights of deceased man's girlfriend when he ordered her to stay outside the dead man's home while allowing the decedent's widow, who had been separated from him before his death, to enter and search the house and remove her property. The girlfriend, as a mere guest of the decedent, had no possessory interest in the house, and the officer was acting in a reasonable manner to merely keep the peace, rather than actively collaborating with the wife. Ostensen v. Suffolk County, No. 01-CV-05625, 378 F. Supp. 2d 140 (E.D.N.Y. 2005). [N/R]
Seizure of trailers from a field on a man's property, even if the administrative warrant used to do so was invalid, did not violate his Fourth Amendment rights when the field was not within the curtilage of his home and the public could both view and access the area. Under these circumstances, the plaintiff had no reasonable expectation of privacy. Bleavins v. Bartels, No. 04-2415, 2005 U.S. App. Lexis 17212 (7th Cir.). [2005 LR Oct]
Police officer who ordered a landlord to open a door to an apartment so that a woman's ex-boyfriend could retrieve his possessions was not entitled to qualified immunity on woman's claim that he violated her Fourth Amendment rights by becoming actively involved in an ex parte private repossession. Harvey v. Plains Township, No. 04-1148, 2005 U.S. App. Lexis 18756 (3d Cir.). [2005 LR Oct]
Truck owners "conclusory" allegations that the county and the company which towed his vehicle were engaged in a "conspiracy" to operate a "shakedown racket" and deprive truckers of their property was insufficient to state a federal civil rights claim. Hansel v. All Gone Towing Co., No. 04-14710, 132 Fed. Appx. 308 (11th Cir. 2005). [N/R]
Sheriff's deputies did not violate an arrestee's rights by impounding his motor home and inventorying the contents after his arrest for driving without a valid driver's license. Despite the arrestee's argument that there were other occupants of the vehicle who could have driven the vehicle away, the impoundment was carried out under the sheriff department's standard policy, and there was no evidence that the deputies acted for the sole purpose of conducting a criminal investigation or in bad faith. Rose v. Loos, #03-35986, 130 Fed. Appx. 78 (9th Cir. 2005). [N/R]
City's action in erecting barricades that restricted Dairy Queen restaurant's access to the streets and ability of customers to use its drive-through lane violated the business owners' procedural due process rights when it was done without notice or hearing. Warren v. City of Athens, No. 03-3580, 2005 U.S. App. Lexis 11232 (6th Cir. 2005). [2005 LR Aug]
Police officers' alleged failure to return a knife and money confiscated from a motorist during the stop and search of his vehicle was insufficient to support a constitutional due process claim when the seizure was "random and unauthorized" and there were adequate state law remedies for the motorist to seek compensation for his property. Alexander v. Hodell, No. 04-1889, 124 Fed. Appx. 665 (2nd Cir. 2005). [N/R]
Owner of dog failed to assert a viable constitutional claim in seeking damages for the loss of 60 days of the companionship of her pet on a theory that her due process property rights had been violated by the dog's detention. Plaintiff ordered to show cause why she should not be sanctioned for making a "frivolous argument in a meritless case." Wall v. City of Brookfield, No. 04-313, 406 F.3d 458 (7th Cir. 2005). [2005 LR Jul]
Police chief should have known that the warrantless seizure of 70 "derelict" vehicles from salvage yard property was unlawful and that ordinance providing for such seizures without pre- or post-deprivations hearings violated due process. His supposed reliance on the ordinance and consultation with a city attorney did not excuse him from knowing the applicable law. Lawrence v. Reed, No. 04-8030, 406 F.3d 1224 (10th Cir. 2005). [2005 LR Jul]
Boat storage facility failed to show that the county had an official policy or custom which caused its alleged deprivation without due process of a property interest it had in a lien against a boat stored there, based on alleged return of boat to purported true owner, caused by sheriff's deputy's threat of arrest if the boat was not returned. Payne v. County of Sullivan, 784 N.Y.S.2d 251 (A.D. 3d Dept. 2004). [N/R]
Federal civil rights claim for detective's alleged unlawful seizure of computer from man's apartment accrued at the time the seizure occurred, or, at the latest, when the owner learned of the seizure, and his federal civil rights lawsuit was therefore time barred under an Indiana two year statute of limitations. Holly v. Anton, No. 03-1653, 97 Fed. Appx. 39 (7th Cir. 2004). [N/R]
California city's ordinance allowing the seizure of cars used to solicit prostitution or carry out drug transactions, was violative of due process by failing to provide for a reasonably prompt post-seizure hearing on the probable merits of the city's forfeiture case. O'Connell v. City of Stockton, No. C044400, 2005 Cal. App. Lexis 639;128 Cal. App. 4th 831. ). [2005 LR Jun]
Police officers and sheriff's deputy were not entitled to qualified immunity for allegedly seizing "truckloads" of personal property while executing search warrant at residence for the sole purpose of supporting sentencing enhancement in a pending case by proving that the Hells Angels Motorcycle Club was a gang, or for shooting two dogs at the residence. San Jose Charter of the Hells Angels Motorcycle Club v. City of San Jose, No. 02-16329, 402 F.3d 962 (9th Cir. 2005). [2005 LR Jun]
Federal appeals court upholds constitutionality of Detroit anti-vice operation involving the use of undercover female police officers posing as prostitutes in high-crime areas to make arrests for soliciting prostitution and seize vehicles driven or utilized by males, imposing forfeiture if applicable fees and fines were not subsequently Ross v. Duggan , No. 02-1987, 2004 U.S. App. Lexis 28049 (6th Cir. 2004), recommended for full publication, 2005. [2005 LR May]
California officers who presented a car owner with the choice of being arrested on the basis of a "repo man's" citizen complaint or agreeing to allow him to repossess the vehicle did not violate her Fourth Amendment or due process rights. They were faced with conflicting versions of who had last had possession of the vehicle and were trying to peacefully resolve a late-night confrontation. Meyers v. Redwood City, No. 03-15872, 400 F.3d 765 (9th Cir. 2005). [2005 LR May]
City and police officers did not violate an arrestee's Second Amendment right to bear arms or his Fourteenth Amendment right to due process before being deprived of his property when his handgun was taken away during his arrest for various criminal charges, and was subsequently destroyed on court order. The court noted that the confiscation of one weapon did not infringe on the arrestee's right to lawfully acquire another weapon, and that the arrestee was provided with notice of the court hearing regarding the disposition of his pistol, and was in attendance at the court proceeding at which theorder for its destruction was issued. Garcha v. City of Beacon, No. 04 CIV.5981, 351 F. Supp. 2d 213 (S.D.N.Y. 2005). [N/R]
While a convicted felon had no right to personally possess the firearms that were seized from his home, he did have some property rights in the weapons which were protected under state law. Accordingly, further proceedings were required on his claim that the county, by continuing to retain the weapons, and refusing to either restore the property to him through a designee or through the sale of the property and remittance of the proceeds to him violated the due process and eminent domain portions of the Maryland state constitution. Serio v. Baltimore County, No. 17, Sept. Term 2004, 863 A.2d 952 (Md. 2004). [N/R]
The seizure and immediate euthanization of over 200 dogs and cats seized from a woman's trailer home and its attached fenced-in yard did not give rise to a viable claim for deprivation of property without due process of law when the county employees' actions were "random and unauthorized" under state law. This made it impracticable to provide a pre-deprivation hearing, and was not unconstitutional so long as there were available state remedies to compensate the woman for any losses. Bogart v. Chapell, No. 03-2092, 2005 U.S. App. Lexis 1650 (4th Cir.). [2005 LR Mar]
Police officer who shot and killed a dog which had chased and pinned down a man in his back yard was entitled to immunity from liability under a Louisiana statute providing that an officer may kill any dangerous or vicious animal and shall not be liable for damages as a result of such killing. Hebert v. Broussard, No. 04-485, 886 So.2d 666 (La. App. 3rd Cir. 2004). [N/R]
Police officers should not intervene on the side of a creditor during an auto repossession in which the motorist disputed the right to tow the vehicle away. Factual issue as to whether they did not, or merely acted to keep the peace during the dispute barred summary judgment for the officers in motorist's federal civil rights lawsuit. Marcus v. McCollum, No. 03-6148, 2004 U.S. App. Lexis 27201 (10th Cir. 2004). [2005 LR Feb]
A motion to vacate on the basis of bad faith and misconduct a prior settlement and voluntary dismissal of the plaintiff's claim against the Missouri Highway Patrol for the alleged improper seizure and retention of cash found in his vehicle during an arrest for a drug offense had to be brought within a one-year statute of limitations for motions founded in fraud. The plaintiff's three-year delay in bringing the motion was not reasonable, so that the motion was properly denied. Middleton v. McDonald, No. 03-3179, 388 F.3d 614 (8th Cir. 2004). [N/R]
Homeless person had no constitutional due process claim against city and the operator of a homeless shelter for the disposal of his bags of property. He abandoned his property interest in the bags and their contents by failing to retrieve them for almost a month after the stated storage period expired. The court also rejects the plaintiff's argument that he had a constitutionally protected due process property interest in residing in the shelter of his choice. Stone v. Pamoja House, No. 03-9174, 111 Fed. Appx. 624 (2nd Cir. 2004). [N/R]
Arrestees' claim that city had a policy of issuing incomplete, false, and misleading receipts for property taken for inventory purposes from them, and that this was intended to prevent or delay the return of non-forfeitable property could be pursued in federal court, since the deprivations allegedly did not stem from random and unauthorized acts of city employees. Plaintiffs were not required to first exhaust all state law remedies before pursuing procedural due process claims in court. Their claims, however, could not be pursued under the Fourth Amendment, since a Fourteenth Amendment due process claim provided an adequate avenue to seek redress. The federal court also found that property owners cannot state a claim under the Fifth Amendment for the taking of private property for a public use without just compensation before pursuing available state procedures for seeking compensation. Gates v. Towery, No. 04C2155, 331 F. Supp. 2d 666 (N.D. Ill. 2004).[N/R]
Federal appeals court overturns summary judgment for city and county in lawsuit by homeless persons claiming that they have an unconstitutional policy or custom of seizing and destroying their property without proper notice and hearing. Cash v. Hamilton County Dept. of Adult Prob., No. 03-3916 2004 U.S. App. Lexis 23756 (6th Cir. 2004). [2004 LR Dec]
Louisiana court did not have authority to order release to juvenile arrestee's father of a four-wheeler seized as evidence of juvenile's alleged offense of negligently injuring another, because father was not a defendant in the underlying proceeding, now concluded, but a third party. State Ex Rel CC, No. 03-FA-762, 864 So. 2d 663 (La. App. 5 Cir. 2003). [N/R]
Plaintiff failed to adequately allege that an official city policy or custom was behind the alleged disposal of his personal property, which was inside another person's car when it was impounded. City therefore could not be held liable for violation of his due process rights. Further, adequate state law remedies for retrieval of property had been available to plaintiff. Jones v. City of St. Louis, 285 F. Supp. 2d 1212 (E.D. Mo. 2003). [N/R]
Owner of auto which was impounded for evidentiary purposes and retained on condition that he pay towing and storage fees could not pursue civil rights claim to regain his auto when he failed to show that available state-law remedies were inadequate, violating his due process rights. Plaintiff did, however, have standing to challenge the constitutionality of the city's action in spray-painting his vehicle after 30-days of impoundment, as statute under which it was done only applied to abandoned, lost, stolen or unclaimed cars which the city had a right to dispose of. Lee v. City of Chicago, No. 02-1503, 330 F.3d 456 (7th Cir. 2003). [N/R]
Family could not recover damages for loss of consortium or intentional infliction of emotional distress based on county dog warden's shooting of their pet dog. Loss of "love and affection" from death of dog was not the kind of damages family could obtain under Kentucky state law, the shooting did not take place in front of the family, and there was no evidence that defendant intended, by his actions, to inflict emotional harm. Court also refuses to find a practice of destroying impounded dogs by shooting them inhumane, leaving such issues to be decided by the legislature. Ammon v. Welty, No. 1999-CA-001759-MR, 113 S.W.3d 185 (Ky. App. 2003). [N/R]
Car owner whose vehicle was seized and subject to forfeiture proceedings after another person driving it was arrested for attempting to purchase marijuana could not pursue federal civil rights lawsuit asserting that the forfeiture was a violation of due process while the state forfeiture proceeding's direct appeal process was not yet complete. Loch v. Watkins, No. 01-1598, 337 F.3d 574 (6th Cir. 2003). [N/R]
Seizure of old truck from residential property without a warrant or any exigent circumstances under the authority of an abandoned property ordinance, if true, would violate landowner's clearly established Fourth Amendment rights, so defendant city officials were not entitled to qualified immunity. Gould v. Symons, 275 F. Supp. 2d 843 (E.D. Mich. 2003). [N/R]
Federal appeals court rules that plaintiff could not pursue his federal civil rights claim seeking damages for the alleged taking of gems and money by law enforcement officers during the search of his home without first successfully setting aside his federal narcotics conviction that grew out of the search. The plaintiff was, in effect, challenging his conviction, claiming that he had tried to sell gems to the officers, rather than heroin, as they claimed, and that they stole the gems and framed him for the drugs. Under Heck v. Humphrey, 512 U.S. 477 (1994), a convicted criminal may not bringing a civil suit questioning the validity of his conviction until he has gotten the conviction set aside. Okoro v. Callaghan, No. 02-2033, 324 F.3d 488 (7th Cir. 2003). [N/R]
When officers knew that the vehicles in question had been rebuilt from salvage and had been told that replacement parts might either not have VIN numbers or else not match the public VIN of the vehicles, there was a genuine issue of fact as to whether the officers reasonably believed that missing or mismatched VIN numbers established probable cause for seizure of the vehicles. Appeals court rules that there was also a valid issue as to the adequacy of the procedure provided by the state of Arkansas for car owners to recover vehicles seized by police. King v. Fletcher, No. 022-1967, 319 F.3d 345 (8th Cir. 2003). [N/R]
Under District of Columbia law, a claim for intentional infliction of emotional distress could be based on officers' alleged unlawful entry into and search of arrestee's home without justification, killing of his pet dog inside the residence, and failure to secure the premises after his arrest, resulting in the loss of property alleged to have a value in excess of $6,000. Amons v. District of Columbia, 231 F. Supp. 2d 109 (D.D.C. 2002). [N/R]
Search and Seizure: Home/Business
Federal civil rights claims against Secret Service agent for destruction of property (residence doors) during execution of a federal search warrant were properly dismissed when there were post deprivation remedies available which the plaintiff had not shown were inadequate. Stiger v. O'Nell, #02-5774, 53 Fed. Appx. 738 (6th Cir. 2002). [N/R]
Federal civil rights claims against Secret Service agent for destruction of property (residence doors) during execution of a federal search warrant were properly dismissed when there were post deprivation remedies available which the plaintiff had not shown were inadequate. Stiger v. O'Nell, #02-5774, 53 Fed. Appx. 738 (6th Cir. 2002). [N/R]
A city's delay in setting a hearing date for a number of weeks after a motorist's car was towed for alleged parking violations, despite the owner's "insistent and immediate" demand for a hearing violated both a California state statute, Ann. Cal. Vehicle Code Sec. 22852, and constitutional due process, as clearly established twenty-five years before in Stypmann v. City & County of San Francisco, 557 F.2d 1338 (9th Cir. 1977). Overturning trial court's grant of summary judgment for defendant city in motorist's federal civil rights lawsuit, appeals court also holds that the motorist was not entitled, as a matter of due process. to cross-examine the officer who issued the towing order, but that the city had the burden, under California law, of demonstrating that the seizure of the car was valid. David v. City of Los Angeles, #00-57091, 307 F.3d 1143 (9th Cir. 2002). [N/R]
Sheriff's department did not violate the due process rights of the operator of a towing service by removing his company from a rotation list. Despite company's seventeen years of service, it had no property interest in being on the tow rotation list, and internal departmental rules establishing a policy of removing companies only for "sufficient cause" did not create a property interest because they were not required by statute or ordinance. Plaintiff operator also did not establish a First Amendment violation based on his argument that the removal was in retaliation for his public criticism of the rotation system. S&S Research, Inc. v. Paulszcyk, No. 01-2456, 44 Fed. Appx. 744 (7th Cir. 2002).[N/R]
Following the conclusion of criminal proceedings, an arrestee could seek money damages under Florida law for the value of property impounded which could not be returned as it could not be located. Forbes v. State of Florida, 826 So. 2d 421 (Fla. App. 2002). [N/R]
Owners of cars and trucks allegedly destroyed or damaged after being towed to a city impound lot failed to establish that a city policy violated their right to due process by erroneously denying the presence of their vehicles there, or that the city was "deliberately indifferent" to the problem of city employees or agents allegedly stealing from or damaging vehicles placed in the lot. Gable v. City of Chicago, #01-1941, 296 F.3d 531 (7th Cir. 2002). [2002 LR Nov]
Denial of arrestee's motion, at the conclusion of criminal prosecution, for return of seized pistol barred federal civil rights lawsuit for deprivation of property on the basis of police department property clerk's refusal to return the weapon. Lewandowski v. Property Clerk, 209 F. Supp. 2d 19 (D.D.C. 2002). [N/R]
Police officers and city and county for which they worked could not be sued under California law for conversion of man's marijuana which they seized and destroyed, despite the existence of a state statute, the Compassionate Use Act, allowing for the medical use of the drug. The trial court ruled that the statute created an affirmative defense under state law to criminal prosecution for possession of the drug, but did not create a private right to sue for damages for the seizure and destruction of the drug. Rodrigs v. City of Capitola, No. DV 139674 (Santa Cruz Co., Calif., Super. Ct., April 15, 2002), reported in The National Law Journal, p. B2 (July 15, 2002). [N/R]
Police officers were not subject to liability for the alleged improper destruction of property in a home during the execution of a residential search warrant on a "group liability" theory. Officers who remained outside of the home during the search could not be held liable for officers' alleged actions inside on the basis that they were "integral participants" in the allegedly unlawful conduct. Jones v. Williams, #00-56929, 286 F.3d 1159 (9th Cir. 2002). [2002 LR Jul]
County sheriff did not violate the rights of pawnbrokers by conducting administrative searches of their businesses to ensure compliance with a Florida state record keeping statute, but statute did not empower him to immediately seize property for which records could not be produced. Quik Cash Pawn & Jewelry Inc. v. Sheriff of Broward County, 279 F.3d 1316 (11th Cir. 2002). [2002 LR Jul]
Vehicle owner had no privacy interest in auto parked on city street; no warrant was required to seize vehicle after default judgment issued for failure to pay parking fines. Administrative parking violation notices provided were sufficient to give vehicle owner notice of available pre- and post-deprivation remedies. Rackley v. City of New York, 186 F. Supp. 2d 466 (S.D.N.Y. 2002). [2002 LR Jul]
County sheriff was not liable for violation of civil rights on the basis of enforcement of a state court order for replevin (possession) of property (employer's records in the possession of a former employee) in the absence of any claim that the sheriff participated individually in the action or that the seizure was conducted pursuant to any official policy or custom. Buzzanco v. Lord Corporation, 173 F. Supp. 2d 376 (W.D. Pa. 2001). [N/R]
Oregon appeals court holds that a city which "mistakenly" seized marijuana from a patient entitled to possess it under state statute must return the drugs to him despite federal law prohibiting the delivery of controlled substances. Court points to a provision of the federal statute immunizing law enforcement officers from civil or criminal liability for handling controlled substances if it is done within the performance of their duties. State of Oregon and City of Portland v. Kama, A109667, 39 P.3d 866 (Ore. App. 2002). [2002 LR May]
Plaintiff did not show that the city had a custom or policy that caused the deprivation of his due process rights to his property in the absence of a pattern of similar incidents in which property seized during searches was not returned after it was determined that it had no connection to any crime. The fact that construction equipment was seized from two residences and that criminal charges related to the seizures were later both dropped did not show such a pattern when both searches were conducted on the same day by the same officer. Brown v. Knapp, 156 F. Supp. 2d 732 (N.D. Ill. 2001). [N/R]
Jury properly awarded $10,000 for living expenses and $15,000 for pain and suffering to woman wrongfully evicted from the residence that she owned based on deputy's interpretation of a temporary restraining order her estranged husband had obtained. Cozzo v. Tangipahoa Parish Council-President Government, #00-30104, 279 F.3d 273 (5th Cir. 2002). [2002 LR Apr]
Sheriff and his deputies did not act unreasonably in enforcing a judicial order allowing an estranged husband to remove his property from the marital residence occupied by his wife during pending divorce proceedings when order was facially valid. Alleged fraud on the court and sheriff by the husband's attorney did not alter the result. Nicholson v. Moates, 159 F. Supp. 2d 1336 (M.D. Ala. 2001). [N/R]
Wisconsin state statute governing the return of seized property, W.S.A. 968.20, did not authorize trial court to award the fair market value of the property once it was no longer in the possession of the governmental entity which seized it. Property owner who was acquitted on the charge of receiving stolen property was not entitled to an award of money damages under the statute when city had given the property to another person it believed to be the rightful owner. In te Return of Property in State v. Glass, No. 99-2389, 628 N.W.2d 343 (Wis. 2001). [N/R]
Wife could not recover money damages in federal civil rights lawsuit against county sheriff alleging that deputy sheriffs violated her procedural due process rights by seizing her personal property on behalf of her husband. State law proceeding for "wrongful attachment" gave the wife an adequate post-deprivation remedy for the allegedly wrongful seizure. Nicholson v. Moates, 135 F. Supp. 2d 1185 (M.D. Ala. 2001). [N/R]
Police officer could violate the Fourth Amendment if he intentionally and repeatedly shot and killed a pet dog, absent provocation and knowing that it belonged to a family which was readily available to take possession of the animal. Brown v. Muhlenberg Township, No. 00-1846, 269 F.3d 205 (3rd Cir. 2001). [2002 LR Feb] [N/R]
346:155 Motorist's claim that city and its officers seized his car in order to side with auto shop that claimed he owed money for repairs stated a claim for violation of his Fourth Amendment and Fourteenth Amendment due process rights. Johnson v. City of Evanston, Illinois, #00-4207, 250 F.3d 560 (7th Cir. 2001).
346:155 Tennessee Supreme Court rules that state statute authorizing claims against state for negligent care of personal property does not allow claims for personal injuries caused by such negligence, but merely claims for loss or damage to the property; state was not liable for injuries to county deputy hit by a motorist while assisting passenger with nonoperating car at scene of state trooper's arrest of speeding motorist. Stewart v. State of Tennessee, 33 S.W.2d 785 (Tenn. 2000).
344:123 Shooting and killing by sheriff's deputy of Ohio man's pet lioness, allegedly after the escaped animal was tranquilized and returning to the barn from which it had roamed, stated a claim for unreasonable seizure of property, on which the sheriff was not entitled to qualified immunity. Newsome v. Erwin, 137 F. Supp. 2d 934 (S.D. Ohio 2000).
343:106 Owner of guns and ammunition seized under valid search warrant could pursue federal civil rights lawsuit for damages when police refused to return them without a court order, despite the fact that no criminal charges were filed regarding them; search warrant did not constitute sufficient pre-deprivation process, and the refusal to return them was not "random and unauthorized." Lathon v. City of St. Louis, #00-1521EM, 242 F.3d 841 (8th Cir. 2001).
340:62 Sheriff had no supervisory liability for deputy's theft of arrestee's gold ring when he had established a policy for safeguarding arrestee property as well as procedures to investigate complaints, and had no prior notice of deputy's alleged propensities. Miller v. Kupchunos, 106 F. Supp. 2d 340 (D. Conn. 2000).
326:20 Police officers did not violate dog owner's property rights when they shot and killed her pit bull, which had just bitten a woman and was coming towards them and ambulance attendants in a menacing manner; city did not act with deliberate indifference to plaintiff's rights by limiting training to situations involving mad dogs with rabies. Hooper v. City of Detroit, 50 F.Supp. 2d 689 (E.D. Mich. 1999).
327:40 Alabama man had no federally protected right to act as a private detective in a county; sheriff not liable for denial of pistol permit which applicant alleged was required for private detective's license to be issued. Moates v. Strength, 57 F.Supp. 2d 1305 (M.D. Ala. 1999).
[N/R] "Adult" bookstore's constitutional rights were not violated by seizure of merchandise by police, and trial court abused its discretion by granting judgment to bookstore for the value of the property seized under a state law conversion of property count that was not stated in the bookstore's complaint. Pinkley Incorporated v. City of Frederick, Maryland, No 96-1447, 191 F.3d 394 (4th Cir. 1999).
321:141 No federal constitutional claim could be asserted for police detective's alleged destruction of man's bus pass, since he had an adequate post-deprivation remedy of filing a state lawsuit for the value of his lost property; failure of detective to read man Miranda rights did not violate constitutional rights; detective's alleged threats to use force against man did state a possible claim. Harris v. St. Louis Police Dept., #98-1810, 164 F.3d 1085 (8th Cir. 1998).
318:94 Jury awards $255,000 in damages to owners of pet dog shot and killed by officers in the yard of owner's home; officers claimed that dog jumped at them, while plaintiffs argued that dog merely stared at officers, was arthritic, and was unable to leap in the air. Fuller v. City of Richmond, U.S. Dist. Ct. N.D. Cal (Dec. 30, 1998), reported in the San Francisco Chronicle, p. A15 (Dec. 31, 1998).291:44 City liable, under Missouri law, for $9,175 to arrestee whose gold Rolex watch was missing after arresting when booking officer failed to follow departmental procedures in inventory, recording, and storage of arrestee property Jungerman v. City of Raytown, 925 S.W.2d 202 (Mo 1996).
297:140 Officer was not liable for release of truck to former owner who reported it stolen; officer impounded vehicle from current owner based on discrepancies between vehicle and license plate and problem with vehicle identification number, and did not make the decision concerning who had the right to the vehicle; officer's action was, at most, negligence which could not be basis for federal civil rights claim Williams v. Soligo, 104 F.3d 1060 (8th Cir. 1997).
291:44 City liable, under Missouri law, for $9,175 to arrestee whose gold Rolex watch was missing after arresting when booking officer failed to follow departmental procedures in inventory, recording, and storage of arrestee property Jungerman v. City of Raytown, 925 S.W.2d 202 (Mo 1996).
273:141 Police chief's alleged advice to resident that he could shoot stray animals on his property, which allegedly led to resident's shooting and killing of neighbor's cat, could not be the basis of a federal civil rights lawsuit when there were adequate state remedies for the loss of the cat Cathey v. Guenther, 47 F.3d 162 (5th Cir. 1995).
275:172 California Supreme Court rejects store's claim that severe damage to store premises and inventory which occurred while officers were attempting to apprehend a suspect in the store constituted a "taking" of private property for a public purpose for which the store could sue for "just compensation" from the city Customer Company v. City of Sacramento, 10 Cal 4th 368, 41 Cal.Rptr.2d 658, 895 P.2d 900 (1995).
Editor's Note: Prior court rulings in the case can be found at: Fuller v. Vines, 36 F.3d 65 (9th Cir. 1994) (overturning summary judgment for defendants on claim that seizure of dog violated Fourth Amendment); and Fuller v. Vines, 1997 U.S. App. Lexis 17199, 117 F.3d 1425 (9th Cir. 1997), cert denied, 118 S.Ct. 855 (1998) (ruling that officers were not entitled to qualified immunity).
307:108 Federal appeals court rules that notice left at scene of execution of search warrant violated due process by failing to explain how to initiate proceedings to seek return of property seized; U.S. Supreme Court grants review of case. Perkins v. City of West Covina, 113 F.3d 1004 (9th Cir. 1997), cert. granted, 118 S.Ct. 1690 (1998).
309:141 Arrestee whose car was allegedly seized and used by law enforcement officials for their own purposes for two years did not suffer violation of constitutional right to procedural due process when state law post-deprivation remedy was available to him, even if he did not prevail in state law action. Pangburn v. Culbertson, 991 F.Supp. 152 (W.D.N.Y. 1997).
Officer entitled to qualified immunity for seizing cash from vehicle occupants after driver of another vehicle stated they offered him cash to fail to report an accident, but was not entitled to such immunity for seizing passengers' worn jewelry prior to discovering $50,000 in vehicle trunk later suspected of being drug funds. Lindsey v. Storey, 936 F.2d 554 (11th Cir. 1991).
Due process claim against officer for allegedly assisting several dental partners in unlawfully removing property from dental offices was barred by the existence of adequate state law remedies for property deprivation; appeals court overturns $225,000 award against officer Charbonnet v. Lee, 951 F.2d 638 (5th Cir. 1992).
District of Columbia policy which failed to provide formal notice and hearing prior to destruction of towed illegal parked "junk" car violated constitutional due process. Propert v. District of Columbia, 948 F.2d 1327 (DC Cir. 1991).
Arrestee's allegation that police detective seized and kept his IRS tax refund check stated a claim for deprivation of property without due process. McClendon v. Turner, 765 F.Supp. 251 (WD Pa 1991).
Impoundment and subsequent sale of vehicle driven by DUI arrestee could be the basis for due process claim against officer and city if owner was not given adequate notice of post deprivation hearing Summers v. State of Utah, 927 F.2d 1165 (10th Cir. 1991).
City was not liable for $71,000 in property damage to house caused by officers firing tear gas and "flash bang" grenades into house to flush out drug suspect who barricaded himself in another's home. Wegner v. Milwaukee Mut Ins Co, 464 N.W.2d 543 (Minn. App. 1990).
Failure to provide for formal notice and hearing prior to destroying illegally parked car as junk did not violate due process Propert v. District of Columbia, 741 F.Supp. 959 & 961 (DDC 1990).
City ordinance under which property seized for criminal investigation was disposed of without notice to owners unconstitutionally violated due process; property owners awarded $147,78157 against city Matthias v. Bingley, 906 F.2d 1047 (5th Cir. 1990).
Criminal defendant convicted of illegal possession of 201 firearms by convicted felon had a constitutionally protected property interest in the confiscated weapons and could sue city and county for their sale of them absent forfeiture hearing Copper v. City of Greenwood, Miss, 904 F.2d 302 (5th Cir. 1990).
Arrestee could sue police department and detective for alleged seizure, without receipt, of cash from him during search of his apartment for heroin Hernandez v. Maxwell, 905 F.2d 94 (5th Cir. 1990).
Disposition of property seized from arrestee without notifying him of procedures for reclaiming it would violate due process. Butler v. Castro, 896 F.2d 698 (2nd Cir. 1990).
* See also: Negligence: Property of Others
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