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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 federal appeals court ruled that a reasonable officer could think that a warrant to search a vehicle included an implicit authorization to seize the keys to the vehicle. A second warrant in the case authorizin the seizure of any and all handguns in the plaintiff’s home, and the seizure of antique handguns, guns in unopened boxes and holsters was permitted because they were reasonably related to the suspected crime at issue – the discharge of a firearm at a visitor to the defendant's home so that the warrant was sufficiently particular. A defendant sheriff played no part in obtaining or executing the warrant and the plaintiff failed to allege that he failed to train or supervise his deputies and, as a result, he was entitled to summary judgment on the claims against him in his individual capacity. The plaintiff also failed to allege an actionable municipal custom, and the court therefore did not err in granting the sheriff summary judgment on the plaintiff’s official capacity claim. Finally, the plaintiff had an adequate state court remedy to obtain the return of the seized items, and his due-process claim over the retention of his property was rejected. Thiel v. Korte, #19-1860, 954 F.3d 1125 (8th Cir. 2020).
A federal appeals court overturned the dismissal of a property owner’s lawsuit asserting that her Fourth Amendment rights were violated when a police officer shot and killed her pet dog, which was in her yard tethered and incapable of reaching or harming the officer. If true, this stated a claim for an unconstitutional seizure of her property for which the officer was not entitled to qualified immunity. Shooting the dog was not reasonable under the Fourth Amendment because at the time of the shooting, the dog did not pose a threat to the officer since it had reached the end of the zip-lead, and could no longer reach the officer. Ray v. Roane, #18-2120, 948 F.3d 222 (4th Cir. 2020).
A federal appeals court upheld summary judgment for police officers on the basis of qualified immunity in a lawsuit claiming that they violated the plaintiffs’ Fourth and Fourteenth Amendment rights when they allegedly stole property during the execution of a search and seizure pursuant to a warrant. Following the search, the officers gave the plaintiffs an inventory sheet stating that they seized approximately $50,000 from their properties. The plaintiffs claimed, however, that the officers actually seized $151,380 in cash and another $125,000 in rare coins, and that the officers stole the difference between the amount listed on the inventory sheet and the amount actually seized from the properties. At the time of the incident, the court found, there was no clearly established law holding that officers violate the Fourth or Fourteenth Amendment when they steal property seized pursuant to a warrant. Jessop v. City of Fresno, #17-16756, 936 F.3d 937 (9th Cir. 2019).
A homeless man was living on the streets of Los Angeles, and caring for 20 birds when animal control officers showed up at his tent to investigate complaints about the animals. Officers found 18 pigeons, a crow, and a seagull in boxes and cages in his home on a sidewalk, all in various states of health. The city decided to seize all of the animals, giving the man 10 days to request a hearing to regain custody. But before that deadline was up, a city veterinarian euthanized all the pigeons, claiming they could've been carrying pathogens without ever testing their blood. The man sued the city, and his case was dismissed by a trial court. But a federal appeals court revived some his claims, saying his constitutional rights might've been violated. It upheld a grant of summary judgment on the Fourteenth Amendment due process claim against the officers and dismissal of the state law claims, but vacated the trial court's grant of summary judgment on the Fourth Amendment claim challenging the seizure of the birds because there were genuine issues of material fact as to whether plaintiff’s healthy-looking birds posed any meaningful risk to the other birds or humans at the time they were seized. It further instructed the trial court to consider whether the officers were entitled to qualified immunity because any constitutional violation was not clearly established at the time it was committed. Recchia v. Los Angeles Dept. of Animal Services, #13-57002, 2018 U.S. App. Lexis 11364 (9th Cir.).
A 30-day impound of a motorist’s vehicle under a state statute after she lent it to a driver with a suspended driver’s license amounted to a seizure that required compliance with the Fourth Amendment. A federal appeals court ruled that the exigent circumstances the justified the seizure of the vehicle disappeared once the car arrived in the impound lot and the plaintiff showed up there with both proof of ownership of the vehicle and a valid driver’s license. The defendants provided no justification for the continued seizure. Brewster v. Beck, #15-55479, 859 F.3d 1194 (9th Cir. 2017).
A motorist was
arrested for speeding “wildly” while both drunk and high on drugs. His Ferrari
was impounded during the incident, and a magistrate ordered that the county
retain the vehicle. The motorist filed a federal civil rights lawsuit claiming
that the county, in retaining the vehicle while litigation was pending (pendent
lite) deprived him of constitutional due process. A federal appeals court
disagreed, holding that the Due Process Clause of the Fourteenth Amendment
permitted the county, after making out a prima facie case that retention was
necessary to protect its interests, to shift the burden of going forward onto
the title owner to identify an alternative measure that satisfied the
municipality's interests in the financial value of
the vehicle and/or in protecting the public from continued unsafe and illegal
driving, Summary judgment for the plaintiff was reversed. Ferrari v. County of Suffolk, #15-975, 2016 U.S. App. Lexis
23280 (2nd Cir.).
Police arrested a man for possession of a controlled
substance while he was driving another person's car. They also then impounded
the vehicle under a municipal law allowing the seizure of vehicles if there was
probable cause to believe it was used to carry drugs or used in an illegal drug
transaction. The car owner challenged the impoundment in city administrative
hearings. The hearing found that probable cause existed and then found the car
owner guilty of violating the city law and ordered her to pay the required
penalty of $2,000 plus $180 in storage and towing fees. A federal appeals court
upheld the facial validity of the ordinance, rejecting arguments that it
permitted unlawful warrantless seizures of vehicles in all circumstances and
improperly allowed a non-judicial officer to determine whether probable cause
existed for the vehicle to remain seized. Under the city ordinance, the police
officer seizing the vehicle without a warrant must have probable cause to
believe it contained drugs or was used in a drug deal. This did not violate the
Fourth Amendment. Bell v. City of Chicago, #15-2833, 835 F.3d 736 (7th Cir.
2016).
Two arrestees filed
suit claiming that a county's alleged practice of collecting all of a detained
arrestee's cash upon booking, and related practices, violated their Fourteenth
Amendment procedural due process rights. Once the cash was collected, the
county automatically deducted a $25 booking fee, and later returned the
remaining funds not in cash but in the form of a prepaid debit card. In accord
with a prior decision by the Sixth Circuit, the Eighth Circuit concluded that
the private property interest at stake with such practices is relatively modest
that that the county's interest in collecting the booking fee was substantial.
The plaintiffs failed to show that the county's booking fee policy was
unconstitutional in providing only a post-deprivation remedy instead of a
pre-deprivation remedy. Mickelson v. County of Ramsey, #14-3164, 2016 U.S. App.
Lexis 8137 (8th Cir.).
Answering an ad for a 1997 Harley-Davidson
motorcycle, man visited a dealership, test drove a 2004 motorcycle, and paid
for it. The bill of sale listed the VIN, year, and mileage for the 1997
motorcycle by mistake. When he attempted to buy insurance for the vehicle, he
discovered the discrepancy. When he contacted the dealership, it demanded that
he return the 2004 motorcycle, contending that he had bought the 1997 vehicle,
or else pay an additional amount. The dealer called the police and accused the
man of theft. The police called the man and told him that he would be subject
to arrest if he did not return the motorcycle. He took the motorcycle to the
police station. He sued the police for violating the Fourteenth Amendment by
depriving him of property without due process of law. Rejecting the claim, a
federal appeals court found that there was probable cause to believe that the
plaintiff's possession of the motorcycle was unlawful. Zappa v. Gonzalez,
#14-3223, 2016 U.S. App. Lexis 6903 (7th Cir.).
A boat owner claimed that a city and its officers
unlawfully seized his sailboat and destroyed it without justification or notice.
A federal appeals court, reinstating some of the plaintiff's claims, including
procedural due process and search and seizure, found that the trial court acted
erroneously in applying a "heightened pleading" burden. All the
plaintiff needed to do to establish municipal liability was allege a policy,
practice, or custom of the city which caused the seizure and destruction of his
sailboat, which he did. His complaint did not need to specifically identify the
municipality's final policymaker by name. He also sufficiently stated a claim
for an unconstitutional seizure under the Fourth Amendment. Hoefling, Jr. v.
City of Miami, #14-12482, 811 F.3d 1271 (11th Cir. 2016).
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