Larson v. City of Denver

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 29 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
LEN LARSON, doing business
as Len Larson & Associates,
Plaintiff - Appellant,
v. No. 01-1301
(D.C. No. 98-B-2134)
CITY OF DENVER, a municipal (D. Colorado)
corporation; DANIEL E. MUSE,
individually and as the City Attorney
for the City of Denver; DAVID L.
MICHAUD, individually and as the
Chief of Police for the City of Denver;
TOM SANCHEZ, individually and as
Deputy Chief of Operations for the
City of Denver Police Department,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before HENRY , Circuit Judge, BRORBY , Senior Circuit Judge, and BRISCOE ,
Circuit Judge.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Plaintiff Len Larson operates a pawn shop in Denver, Colorado. Plaintiff
filed suit against defendants under 42 U.S.C. § 1983, alleging that defendants
violated his constitutional rights by unlawfully seizing and disposing of jewelry
from his pawn shop on five separate occasions between 1993 and 1998.
Specifically, plaintiff alleged that: (1) defendants seized the jewelry without
a warrant in violation of the Fourth Amendment; (2) defendants disposed of the
seized jewelry without a hearing in violation of his right to procedural due
process under the Fourteenth Amendment; and (3) the applicable provisions of the
City of Denver’s Municipal Code regulating pawn shops are unconstitutional both
on their face and as applied to him.
Plaintiff moved for partial summary judgment on his procedural due
process claim, and defendants moved for summary judgment on all of plaintiff’s
claims. In a well-reasoned order entered on May 24, 2001, the district court
denied plaintiff’s motion and entered summary judgment in favor of defendants
on the grounds that:
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1. Plaintiff’s claims relating to the seizure that occurred in December 1993
are time barred, as plaintiff has conceded on appeal;
2. With respect to the other four seizures, although plaintiff had a putative
property interest in the seized jewelry, his right to procedural due process was not
violated because, under the applicable provisions of the City of Denver’s
Municipal Code, he had the right to request a court hearing regarding the
disposition of the jewelry, but he failed to request such a hearing despite having
notice of his right to such a hearing;
3. With respect to the seizure that occurred in May 1995, plaintiff’s Fourth
Amendment claim is time barred;
4. With respect to the seizure that occurred in March 1997, defendants did
not violate the Fourth Amendment because the jewelry was seized pursuant to a
warrant and plaintiff failed to put forth any evidence showing that the warrant
was unlawful;
5. With respect to the seizures that occurred in June 1997 and February
1998, defendants did not violate the Fourth Amendment because plaintiff
consented to the seizures and: (a) even if his consent to the seizures was
procured by the participating officers using unlawful threats, there is no evidence
that any of the named individual defendants personally participated in the
threatening conduct, either directly or in a supervisory capacity; and (b) there is
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no basis for imposing municipal liability against the City of Denver since there is
no evidence that the Denver Police Department had a policy or custom of using
threats to obtain permission to conduct warrantless seizures at pawn shops;
6. Because there is no basis for imposing municipal liability against the
City of Denver, the individual defendants are entitled to summary judgment with
respect to plaintiff’s official capacity claims; and
7. The applicable provisions of the City of Denver’s Municipal Code
regulating pawn shops, and the district and local court rules incorporated by
reference therein, are not unconstitutional, either on their face or as applied to
plaintiff, because: (a) they require that police officers must have a warrant or
consent to seize property from a pawn shop; (b) they provide that pawn brokers
may obtain a hearing regarding the seized property if a request for a hearing is
made within twenty days of the seizure; and (c) plaintiff had notice that he had
the right to request a hearing regarding the jewelry seized from his pawn shop,
but he failed to request such a hearing on each of the occasions at issue.
We review the district court’s grant of summary judgment de novo,
“applying the same legal standard used by the district court. Summary judgment
is appropriate if there is no genuine issue as to any material fact and the moving
party is entitled to a judgment as a matter of law.” United States v. Simons ,
129 F.3d 1386, 1388 (10th Cir. 1997) (citations omitted). Having carefully
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reviewed the record on appeal, the parties’ briefs, and the pertinent case law,
we agree with the district court’s analysis and its conclusions. Accordingly, we
affirm the entry of summary judgment in favor of defendants for substantially the
same reasons set forth in the order entered by the district court on May 24, 2001.
AFFIRMED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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