Clement v. J & E Service ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARY CLEMENT, 
Plaintiff-Appellant,
v.
CITY OF GLENDALE, No. 05-56692
Defendant,
 D.C. No.
CV-02-02555-FMC
and
J&E SERVICE INC., d/b/a Monterey OPINION
Tow Service; J. YOUNG, an
individual,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Florence Marie Cooper, District Judge, Presiding
Argued and Submitted
July 11, 2007—Pasadena, California
Filed March 11, 2008
Before: Alex Kozinski, Chief Judge, Andrew J. Kleinfeld
and Richard C. Tallman, Circuit Judges.
Opinion by Chief Judge Kozinski
2347
2350 CLEMENT v. J&E SERVICE INC.
COUNSEL
Donald E. Chadwick, Northridge, California, for the appel-
lant.
Michael E. Sayer and Damian J. Nassiri, Claims Legal Man-
agement, APC, Irvine, California, for the appellees.
CLEMENT v. J&E SERVICE INC. 2351
OPINION
KOZINSKI, Chief Judge:
We determine the extent to which the Due Process Clause
of the Fourteenth Amendment requires a state to provide
notice before it may tow a vehicle parked in violation of state
registration laws, if the owner has dutifully complied with an
alternate form of registration.
Facts
Virginia Clement1 lived in a residential hotel and parked
her 1981 Cadillac Eldorado Biarritz in the hotel’s parking lot.
The car had not been driven in seven years and Clement did
not keep the car’s registration current. But she did dutifully
complete an alternate form of vehicle registration, she had the
hotel’s permission to park there and the car was in its proper
space. Without so much as a letter, a knock on the door, a
note on her windshield or even a parking ticket, the Glendale
police towed and impounded Clement’s car. They left no clue
to where it had gone. Only later did Clement discover that it
had been towed for allegedly violating California vehicle reg-
istration laws.
The process started when Glendale police officer Young,
on a routine patrol, noticed expired registration stickers on the
car. He ran the plates and learned that Clement had filed a
“planned non-operation” (PNO) certificate with the state DMV.2
A PNO certificate allows vehicle owners to avoid paying for
registration and insurance, so long as they don’t drive on pub-
lic roads or park in publicly accessible parking lots. Cal. Veh.
1
Virginia Clement has been succeeded in this litigation by her daughter,
Mary Clement.
2
As the district court resolved the case on summary judgment, we
assume Clement’s version of events. Meyers v. Redwood City, 400 F.3d
765, 769-70 (9th Cir. 2005).
2352 CLEMENT v. J&E SERVICE INC.
Code § 4000(a)(1). California law authorizes local police to
tow and impound PNO vehicles found in publicly accessible
parking lots, and to release the vehicle only after it has been
properly registered. Cal. Veh. Code § 22651(o). Officer
Young ordered Clement’s car towed because he believed the
car was parked in a public lot in violation of the statute.3
After discovering what happened to her car, Clement did
the American thing: She sued. Among other claims, she
brought a civil rights action under 42 U.S.C. § 1983 against
Officer Young and against the company that executed the
tow, claiming that they violated her constitutional right to due
process by impounding her car without giving her advance
notice, and that they had unconstitutionally seized her car.
The district court granted summary judgment to defendants on
all of her claims. In a prior appeal, we reversed the district
court’s grant of summary judgment on her due process claim.
Clement v. City of Glendale, 132 F. App’x 147, 148 (9th Cir.
2005) (unpublished). On remand, the district court determined
that Clement’s constitutional right to due process required the
police to try to notify her before impounding her car. The dis-
trict court nevertheless granted summary judgment to Officer
Young on the basis of qualified immunity and to the towing
company based on a “good faith” defense. Clement appeals.
Analysis
[1] 1. No state may “deprive any person of life, liberty,
or property, without due process of law.”4 The courts have
3
We need not decide whether the hotel parking lot was “publicly acces-
sible” under the California Vehicle Code, nor whether the tow was proper
under state law. We assume they were.
4
In deciding a motion for summary judgment in a section 1983 action
we are bound to look first to whether there was a constitutional violation
and then to whether defendants have qualified immunity, even if the quali-
fied immunity inquiry would resolve the case more easily. See Saucier v.
Katz, 533 U.S. 194, 201 (2001); Meyers, 400 F.3d at 770. Some have
CLEMENT v. J&E SERVICE INC. 2353
long interpreted this—along with the parallel restriction on
the federal government in the Fifth Amendment—to require
that notice generally be given before the government may
seize property. See Mullane v. Cent. Hanover Bank & Trust
Co., 339 U.S. 306, 313 (1950) (“Many controversies have
raged about the cryptic and abstract words of the Due Process
Clause but there can be no doubt that at a minimum they
require that deprivation of life, liberty or property by adjudi-
cation be preceded by notice and opportunity for hearing
appropriate to the nature of the case.”); see also Zinermon v.
Burch, 494 U.S. 113, 132 (1990) (“In situations where the
State feasibly can provide a predeprivation hearing before tak-
ing property, it generally must do so regardless of the ade-
quacy of a postdeprivation tort remedy to compensate for the
taking.”); Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
532, 542 (1985) (“We have described the root requirement of
the Due Process Clause as being that an individual be given
an opportunity for a hearing before he is deprived of any sig-
nificant property interest.” (quotation marks omitted)). In
other words, the government may not take property like a
thief in the night; rather, it must announce its intentions and
give the property owner a chance to argue against the taking.
[2] Of course, there are numerous exceptions to this general
rule: The government need not give notice in an emergency,
questioned the logic of this “rigid ‘order of battle,’ ” Brosseau v. Haugen,
543 U.S. 194, 201-02 (2004) (Breyer, J., concurring), but we are bound
to follow it until further notice. We are free to muse, however, that the
Saucier rule may lead to the publication of a lot of bad constitutional law
that is, effectively, cert-proof. If a court of appeals holds that a constitu-
tional right exists under Saucier in step one, but that the right is not clearly
established (as we do in this case), then neither party will have both the
incentive and the standing to petition for review of the constitutional rul-
ing. It may be many years before another case arises that presents the same
issue in a form ripe for review by the Supreme Court. See generally
Thomas Healy, The Rise of Unnecessary Constitutional Rulings, 83 N.C.
L. Rev. 847 (2005).
2354 CLEMENT v. J&E SERVICE INC.
nor if notice would defeat the entire point of the seizure, nor
when the interest at stake is small relative to the burden that
giving notice would impose. See, e.g., Zinermon, 494 U.S. at
132 (“[I]n situations where a predeprivation hearing is unduly
burdensome in proportion to the liberty interest at stake . . .
postdeprivation remedies might satisfy due process.” (citation
omitted)); Mathews v. Eldridge, 424 U.S. 319, 335 (1976)
(weighing “the fiscal and administrative burdens that [an]
additional or substitute procedural requirement would
entail”). Nevertheless, the default rule is advance notice and
the state must present a strong justification for departing from
the norm. The case here is close. Normally, of course,
removal of an automobile is a big deal, as the absence of
one’s vehicle can cause serious disruption of life in twenty-
first century America. See Scofield v. City of Hillsborough,
862 F.2d 759, 762 (9th Cir. 1988) (“The uninterrupted use of
one’s vehicle [on public roads] is a significant and substantial
private interest.”). But Clement couldn’t legally drive her car
on public roads, nor does it appear that she was making off-
road use of the vehicle.5 The car just sat in the parking lot,
unused. Thus the owner’s normal interest in continued use of
his vehicle—as a means of getting from place to place—has
no force here. Nor does there appear to be a significant risk
of erroneous towing.6
[3] However, having one’s car towed, even one that’s not
operational, imposes significant costs and burdens on the
5
An unregistered car with a PNO certificate can still be operated on pri-
vate roads—such as on a farm or ranch. See Cal. Veh. Code § 360
(“highway” as used in registration law is limited to roads “publicly main-
tained and open to the use of the public”); Meraz v. Farmers Ins. Exch.,
92 Cal. App. 4th 321, 325 (Ct. App. 2001) (a vehicle kept off-street at a
private residence need not be registered).
6
The owner—as here—may contest that the car was legally parked or
properly registered. These disputes are likely rare; there is no evidence
before us that the DMV’s registration information is consistently outdated,
nor is there reason to believe that there are frequent debates over whether
a given parking facility is publicly accessible or not.
CLEMENT v. J&E SERVICE INC. 2355
car’s owner. To begin with, there is no place for the police to
leave notice that the car has been towed, so the owner suffers
some anxiety when he discovers that the vehicle has mysteri-
ously disappeared from its parking spot. Then, after discover-
ing the car’s new whereabouts, the owner will normally have
to travel to the towing garage to retrieve it, which may
involve significant cost for someone who doesn’t have an
operational vehicle to drive. And, of course, the garage won’t
release the car unless the owner pays towing, impound and
storage fees.7
[4] Imposition of these burdens and costs cannot be justi-
fied as a means of deterring illegal parking. The punishment
for illegal parking is a fine, which is normally imposed by
affixing a ticket to the windshield. A ticket can also serve as
notice of the illegality and a warning that the car will be
towed if not moved or properly registered. The costs and bur-
dens on the car owner associated with a tow can only be justi-
fied by conditions that make a tow necessary and appropriate,
such as that the car is parked in the path of traffic, blocking
a driveway, obstructing a fire lane or appears abandoned. A
tow may also be appropriate where there are no current regis-
tration stickers and police can’t be sure that the owner won’t
move or hide the vehicle, rather than pay the fine for illegal
parking. See Scofield, 862 F.2d at 764 (authorizing towing in
cases where the state has no current information on the where-
abouts of the owner because notice in such a case could allow
the owner to abscond with the vehicle); see also Graff v.
Nicholl, 370 F. Supp. 974, 983 (N.D. Ill. 1974) (requiring
7
The owner might also dispute the validity of the tow, in which case
California law provides for a hearing within 48 hours. Cal. Veh. Code
§ 22852(c). If the owner is successful in his challenge, the car will pre-
sumably be released without the payment of any fees. However, we must
assume that the tow was proper under state law. Our concern is whether
resorting to towing in the first instance, rather than ticketing the car first,
or giving the owner some other form of advance notice and an opportunity
to move or register the car before it is impounded, is consistent with the
requirements of due process.
2356 CLEMENT v. J&E SERVICE INC.
notice “only to those owners whose identity may be practica-
bly ascertained”). In such situations the tow provides security
for the payment of the fine—a sort of in rem arrest and bail
procedure.
[5] None of these circumstances are present here. As best
the record reflects, the car was not blocking anyone’s path
and the owner of the parking lot—the hotel where Clement
was staying—had given its consent. Nor was this a situation
where the owner might conceal the car instead of paying the
ticket: As Officer Young knew, Clement had a valid PNO cer-
tificate, which meant the DMV had a current address for her.
And, as Officer Young could have figured out, had he both-
ered to make the effort, the address where the vehicle was
registered was the very hotel in whose parking lot the car was
parked. The chances that the car owner would abscond with-
out paying any ticket the officer left on the windshield were
very small indeed.8
The officer had several options open to him in these cir-
cumstances. He could have gone to the front desk of the hotel,
asked to see the owner of the Eldorado Biarritz and told her
personally that she needed to register the car or move it. This
is what one might have expected from a conscientious public
servant confronted with a car parked at the owner’s dwelling.
Short of that, the officer might have written a ticket and left
it at the front desk of the hotel, with a verbal warning that the
car had to be moved or registered—which the hotel clerk
could have been expected to deliver with the ticket. Or, the
officer could simply have written a ticket and left it on the wind-
shield.9
8
California law calls for a fine of not more than $250 for parking an
unregistered vehicle in a public lot. Cal. Veh. Code § 42001.8. It would
have been a simple task to mail a citation to the address on Clement’s
PNO certificate if she hid the vehicle instead of paying the fine.
9
We do not prescribe a particular procedure for giving notice; it is up
to the government to develop a policy that will result in sufficient notice
CLEMENT v. J&E SERVICE INC. 2357
[6] Had Officer Young followed any of these alternative
courses of action, he might then have had to return to the
property a few days later to determine whether the car had
been moved or registered. But this doesn’t seem like a very
significant burden for an officer whose job it is, after all, to
patrol the neighborhood looking for ways to protect and serve
the public. In short, we see very little by way of a legitimate
government interest in ordering a tow of the vehicle in the
first instance, rather than giving the owner notice and an
opportunity to avoid the cost and hassle of having to deal with
a towed vehicle. Thus, we hold that the government must
attempt to notify the owner of a vehicle parked in violation of
a valid PNO certificate before the government may tow and
impound it.
Our holding today dovetails with Scofield, where we held
that there was a due process requirement that notice be given
—usually in the form of a ticket placed on the windshield—
before police could tow apparently abandoned vehicles that
are otherwise legally parked. Scofield, 862 F.2d at 764. We
reasoned that giving notice would be a minor inconvenience
for the police in the case of an abandoned vehicle, and might
even advance the state’s goal of removing abandoned vehicles
from public places, as an abandoned vehicle may be removed
by its owner after being ticketed. Id. Similarly, leaving notice
on an unregistered vehicle is a relatively light burden that is
consistent with the state’s interest in encouraging removal of
unregistered vehicles from public places.
Officer Young could have avoided years of litigation and
needless hassle for himself, the Glendale Police Department,
being given to car owners before impoundment. See Morrissey v. Brewer,
408 U.S. 471, 481 (1972) (“[D]ue process is flexible and calls for such
procedural protections as the particular situation demands.”); Cafeteria &
Rest. Workers Union v. McElroy, 367 U.S. 886, 895 (1961) (“Due process,
unlike some legal rules, is not a technical conception with a fixed content
unrelated to time, place and circumstances.” (quotation marks omitted)).
2358 CLEMENT v. J&E SERVICE INC.
the towing company, the courts, Ms. Clement and her daugh-
ter, by simply erring on the side of caution and good public
service by letting her know that her vehicle was illegally
parked. Instead, the rush to tow led to this protracted litigation
that, no doubt, has consumed far more city resources than it
would have taken to properly notify Clement.
[7] 2. Officer Young asserts qualified immunity as a
defense to liability. See Wyatt v. Cole, 504 U.S. 158, 167
(1992); Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982); Jen-
sen v. Lane County, 222 F.3d 570, 576 (9th Cir. 2000). Gov-
ernment officials performing discretionary functions “are
shielded from liability for civil damages insofar as their con-
duct does not violate clearly established statutory or constitu-
tional rights of which a reasonable person would have
known.” Harlow, 457 U.S. at 818.
[8] Officer Young did not violate Clement’s clearly estab-
lished right by calling for her car to be towed. The constitu-
tional requirement at issue—that pre-towing notice be given
before a car with a valid PNO certificate may be removed
from a parking lot matching the owner’s address—was not
clearly established at the time of Officer Young’s actions.
Neither the text of the Constitution nor our caselaw clearly
spoke to the balance between the rights of citizens to pre-
deprivation notice and the authority of police to enforce regis-
tration statutes. While due process generally requires notice
before the government may deprive a citizen of his property,
see pp. 2352-54 supra, our caselaw recognizes many excep-
tions. See id.; Hudson v. Palmer, 468 U.S. 517, 533 (1984);
Parratt v. Taylor, 451 U.S. 527, 541 (1981), overruled on
other grounds by Daniels v. Williams, 474 U.S. 327, 328
(1986). We have never held that municipalities must always
notify vehicle owners before towing. In fact, our most recent
decision involving municipal towing of unregistered vehicles
—admittedly in a different context—found there to be no
right to pre-deprivation notice. Scofield, 862 F.2d at 764. It
would not have been unreasonable for Officer Young to have
CLEMENT v. J&E SERVICE INC. 2359
interpreted this caselaw as not requiring that notice be given
before towing an unregistered vehicle with a valid PNO cer-
tificate. We affirm the district court’s grant of summary judg-
ment in favor of defendant Young.
[9] 3. Monterey Tow Service, the private towing com-
pany that actually towed Clement’s vehicle, may not assert
qualified immunity because that defense is generally not
available to private defendants in section 1983 lawsuits. See
Wyatt, 504 U.S. at 168. However, the courts have previously
held open the possibility that private defendants may assert a
“good faith” defense to a section 1983 claim. See, e.g., Rich-
ardson v. McKnight, 521 U.S. 399, 413-14 (1997); Wyatt, 504
U.S. at 169; Jensen, 222 F.3d at 580 n.5.
[10] The facts of this case justify allowing Monterey Tow
Service to assert such a good faith defense. The company did
its best to follow the law and had no reason to suspect that
there would be a constitutional challenge to its actions. The
tow was authorized by the police department, conducted
under close police supervision and appeared to be permissible
under both local ordinance and state law. The constitutional
defect—a lack of notice to the car’s owner—could not have
been observed by the towing company at the time when the
tow was conducted; there would be no easy way for a private
towing company to know whether the owner had been noti-
fied or not. Nor would the towing company be aware of the
other facts and circumstances that would be relevant in deter-
mining whether giving notice was constitutionally required.
The responsibility to give notice falls on the police, thus the
constitutional violation arose from the inactions of the police
rather than from any act or omission by the towing company.
Having acted on instructions from the Glendale Police
Department that specifically called for the tow, Monterey
Tow Service is entitled to invoke the good faith defense.
Monterey Tow Service did not waive its good faith defense.
It asserted—in both its answer and motion for summary
2360 CLEMENT v. J&E SERVICE INC.
judgment—that its employees were acting under the appar-
ently lawful direction and authority of the city and officer.
This was sufficient to put plaintiffs on notice that Monterey
Tow Service intended to raise a good faith defense. As there
is no disputed question of material fact underlying the
defense, we affirm the district court’s grant of summary judg-
ment to Monterey Tow Service.
[11] 4. Clement’s seizure claim should not be reinstated.
Our recent decision in Miranda v. City of Cornelius, 429 F.3d
858, 865 (9th Cir. 2005), held that the government has the
power to seize vehicles if “the driver is unable to remove the
vehicle from a public location without continuing its illegal
operation.” It does not contradict or overrule Scofield.
AFFIRMED.