Freeman v. City of Dallas

REVISED - March 5, 2001
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-10907
CHARLES FREEMAN and ROSALYN BROWN,
Plaintiffs-Appellees-Cross-Appellants,
v.
CITY OF DALLAS,
Defendant-Appellant-Cross-Appellee.
Appeal from the United States District Court for the
Northern District of Texas
February 22, 2001
Before JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, WIENER, BARKSDALE,
EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER and DENNIS,
Circuit Judges.*
EDITH H. JONES, Circuit Judge:
The City of Dallas served notices on the owners of two
vacant, deteriorated apartment houses, warning them to repair or
demolish the structures. The owners fought the order according to
City procedures but lost. After the City tore down the condemned
buildings, the owners filed suit in federal court alleging
violations of the Fourth Amendment and the Due Process Clause. A
divided panel of this court held that although the City procedures
complied with due process, the City must also obtain a pre-
*
Chief Judge King did not participate in this decision.
demolition warrant of some sort in order to satisfy the Fourth
Amendment. This court, sitting en banc, disagrees with the panel
majority’s interpretation of the Fourth Amendment and denies relief
to the property owners. A warrant is unnecessary when a
municipality seizes property that has been declared a nuisance by
means of established police power procedures.
I.
Between December 1992 and April 1993, Rosalyn Brown
acquired two vacant, eight-unit apartment buildings in Dallas,
Texas located at 2621 and 2611 Meyers Street. Brown paid $10.00
for the first building and $1.00 for the second, which had suffered
fire damage prior to purchase. On August 11, 1994, Brown
transferred a one percent undivided interest in both buildings to
her brother, Charles Freeman. The buildings remained vacant during
the entire period of plaintiffs’ ownership.
Brown intended to rent the apartment units after making
repairs. To this end, she asked Freeman to be the general
contractor in charge of renovating the apartments. Freeman was
neither a registered engineer or architect, nor did he possess a
general contractor’s license or trade license from the State of
Texas. No construction company or crew worked for him.
In April and July of 1993, inspectors from the Dallas
Department of Housing and Neighborhood Services (the “Department”)
cited the plaintiffs’ two apartment buildings for non-compliance
2
with the City’s Minimum Urban Rehabilitation Standards Code (the
“Code”). According to the Department’s inspectors, the buildings
together needed nearly $200,000 in repairs to comply with the Code.
When the Code violations were not corrected, the Department
referred the matter to the Urban Rehabilitation Standards Board
(“URSB”) and recommended demolition.
The URSB was established by the City of Dallas to
determine whether property condition reports filed by city
inspectors identify violations of the City’s building codes. The
URSB comprises thirty private citizen members (and eight
alternates) who are appointed by the Dallas City Council. The URSB
may determine, after a hearing, whether a given structure is an
“urban nuisance” and take various remedial measures. The URSB is
authorized by city ordinance to order repairs, receivership, the
closing and vacating of buildings, demolition, and civil penalties
of up to two thousand dollars a day against property owners who
fail to repair or demolish a structure after the board has issued
a valid determination and remedial order. DALLAS, TEX., CODE ch. 27,
art. II, § 27-8.
The URSB functions through hearing panels composed of
members of the URSB. The Dallas City Code establishes the
procedure to be used by the panels. At a hearing, “an owner,
lessor, occupant, or lienholder may present witnesses in his own
behalf and is entitled to cross-examine any witnesses appearing
3
against him.” DALLAS, TEX., CODE ch. 27, art. II, § 27-9(c). The
decision of the hearing panel is final except that rehearings may
be granted in certain instances. The code also gives an affected
property owner an absolute right to appeal the panel decision to
state district court. DALLAS, TEX., CODE ch. 27, art. II,§ 27-9(e).
Under state law, the court considers whether the landowner’s
substantial rights have been prejudiced because the URSB decision
violates constitutional or statutory law; exceeds URSB’s authority;
is based on unlawful procedure or any other error of law; is
unsupported by substantial evidence; or is arbitrary or capricious
or an abuse of discretion. TEXAS GOV’T CODE § 2001.174(2).
After receiving the Department’s reports on plaintiffs’
properties, the URSB conducted a title search and mailed a notice
of hearing on each of the properties to the owner of record.1 The
notice announced that the URSB might order demolition to remedy the
Code offenses. It further stated that the property owner would “be
given an opportunity to present evidence and witnesses if so
desired.”
In preparation for the hearings, Department staffers
briefed the panel of URSB members assigned to decide the fate of
1
Freeman did not get notice because he had no interest in
either property at this time. Brown received a notice on 2621
Meyers Street, the property of which she was the owner of record.
Brown did not receive notice on the 2611 Meyers Street property
because, although she had purchased the property by this date, she
had not yet filed a warranty deed. Instead, the notice on 2611
Meyers Street was sent to the owner of record, Robert Burkhead.
4
the Meyers Street properties. They provided the panel members with
information on the properties, including repair cost estimates, and
accompanied some of them on a tour of the premises.
Freeman appeared at the hearings, identifying himself as
the “attorney-in-fact for Brown” and as an owner of 2611 and 2621
Meyers Street. The panel looked at pictures of the structures,
questioned Freeman about his plans for repair, and asked whether he
had the funds for repair. Freeman testified that he lacked funds
at present and asked for more time to make repairs. Expressing
doubt about Freeman’s ownership and his ability to finance repairs,
the panel unanimously voted to demolish each apartment building as
an urban nuisance.2
2
The Code defines an “urban nuisance” as the following:
[A] premises or structure that:
(A) is reasonably dangerous to the physical health
or safety of an occupant or other person; or
(B) because of violations of [the Code] . . ., its
state of disrepair is such that it could reasonably
cause injury, damage, harm, or inconvenience to a
considerable portion of the community in the use
and enjoyment of property, materially interfering
with the proper use or comfort and enjoyment of
surrounding property, taking into consideration the
nature and use of the properties in the area and
the character of the community in which they are
situated, which condition would be substantially
offensive and annoying to persons of ordinary
sensibilities, tastes, and habits living in the
community.
DALLAS, TEX., CODE ch. 27, art. I, § 27-3(23).
The Code goes on to prescribe with specificity the minimum
structural, health and utility standards whose breach may result in
the declaration of an urban nuisance. Dallas, Tex., Code ch. 27,
Art. III, § 27-11.
5
Following the hearing, Freeman signed notices of
demolition for both apartment buildings. He then asked for and
received a rehearing from the URSB. Two panel members visited the
properties before the rehearings. They examined the exterior of
the apartment building at 2611 Meyers Street. At 2621 Meyers
Street, they ran into Freeman. He showed them repairs he had made
inside that property, and they told him to bring pictures of these
repairs to the rehearings.
At the rehearing, the Department showed pictures of the
apartment buildings’ exteriors. In response, Freeman testified
that he thought he could acquire most of the repair materials at
little or no cost. He further stated that he hoped to finance
repairs through a loan from the City; he had received a commitment
from relatives in the construction business to help him make
repairs if he received a City loan.
Freeman also submitted pictures of one unit in the 2621
Meyers Street building that he had repaired, and he presented a
list of repair materials that he had already collected. He further
testified that he could renovate each unit at 2621 Meyers Street
for $2000. Though panel members reacted skeptically and reminded
him of the Department’s repair cost estimates, Freeman did not
inquire about the basis for these estimates nor did he ask to
question the Department officials responsible for them.
6
The panel again voted to demolish plaintiffs’ buildings.
The vote was unanimous on the 2611 Meyers Street property and was
split five to two on the 2621 Meyers Street property. Freeman
received a notice of demolition for each property at the end of the
rehearing, and he signed them. The notice advised that the panel’s
decision could be appealed within twenty days to state district
court for review. Freeman and Brown did not appeal the URSB
decision to state district court.3
When Brown and Freeman failed to demolish the buildings
within thirty days, the City hired a contractor to do the work.
The two vacant structures were demolished in late December 1994,
and the costs of the demolition were assessed against Freeman and
Brown in the total amount of about $16,000.
A year and a half later, Freeman and Brown filed suit
against the City of Dallas under 42 U.S.C. § 1983. They alleged
that the demolition of their apartment buildings without first
3
The URSB also sent notice of the order to demolish the
building at 2611 Meyers Street to Freeman and notice of the order
to demolish the building at 2621 Meyers Street to Freeman and
Brown. The notices stated, in part:
If you do not demolish the structure(s) within the time
above indicated [30 days], the city will arrange to have
this work done and the expense of that demolition
performed under contract with the city will constitute a
lien on the real property on which the structure(s) were
located, and that lien will run with the land.
These notices were sent to the same addresses at which Brown and
Freeman had received mail about earlier hearings, but they were
returned as “Unclaimed.”
7
obtaining a judicial warrant constituted an unreasonable seizure in
violation of the Fourth Amendment. They also alleged that the
URSB’s procedure for condemning and demolishing their apartment
buildings and for imposing liens on the remaining realty denied
them procedural due process in violation of the Fifth and
Fourteenth Amendments.
Freeman and Brown moved for summary judgment on the
Fourth Amendment claim while the City moved for summary judgment on
all claims. The district court granted the plaintiffs’ motion on
the Fourth Amendment claim and granted the City’s motion on the Due
Process claims. Following a one-day trial on damages for the
Fourth Amendment violation, the district court accepted the jury’s
verdict and entered final judgment against the City of Dallas in
the amount of $20,000 plus interest.
A divided panel of this Court affirmed the district
court’s summary judgment for the property owners with respect to
the Fourth Amendment claim, while also affirming the rejection of
the plaintiffs’ Due Process claims.4 See Freeman v. City of
Dallas, 186 F.3d 601 (5th Cir. 1999), reh’g en banc granted, 200
F.3d 884 (5th Cir. 1999). We granted rehearing en banc to
reconsider the Fourth Amendment ruling.
4
This court reinstates the panel opinion concerning the
Due Process claims.
8
II. DISCUSSION
The panel majority reasoned toward a violation of the
Fourth Amendment in three steps. First, the demolition of the
Freemans’ apartment houses was a “seizure” for Fourth Amendment
purposes. Second, the seizure had to be preceded by a warrant.
Third, a warrantless seizure, even if it occurred following
constitutionally adequate local condemnation procedures, is
unreasonable and therefore unconstitutional. While we agree that
the City seized the Freemans’ real property for demolition,5 we do
not accede to the panel majority’s inflexible warrant requirement
in this context or its supplanting of the Fourth Amendment
reasonableness inquiry with such a requirement. The text of the
Fourth Amendment conspicuously fails to require a warrant for every
government search or seizure. And the controlling caselaw
emphasizes reasonableness, a balancing of governmental versus
private interests, as the touchstone of the Fourth Amendment.
Since the relevant facts are undisputed, summary judgment
was granted on the merits as a matter of law, see Fed. R. Civ. P.
5
“Seizure” of property occurs when there is some
meaningful interference with an individual’s possessory interests
in that property, United States v. Jacobsen, 466 U.S. 109, 113, 104
S. Ct. 1652, 1656 (1984), and a “seizure” may occur in both civil
and criminal contexts. There can be no question that the city’s
actions against the Freeman’s apartment buildings constituted a
“seizure”. See Soldal v. Cook County, Ill., 506 U.S. 56, 62 & n.7,
113 S. Ct. 538, 544 & n.7 (1992), (holding that the forcible
removal of a mobile home, leaving the owners dispossessed,
constituted a “seizure” under the Fourth Amendment).
9
56(c). We review the district court’s decision de novo. See
United States v. Johnson, 160 F.3d 1061, 1063 (5th Cir. 1998).
The Fourth Amendment, made applicable to the States by
the Fourteenth Amendment, Ker v. California, 374 U.S. 23, 30, 83 S.
Ct. 1623, 1628 (1963), declares:
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or
affirmation, and particularly describing the
place to be searched, and the persons or
things to be seized.
This provision contains two separate and independent clauses. The
first proscribes “unreasonable searches and seizures,” and the
second prescribes the narrow conditions under which a warrant may
issue. Nothing in the text suggests that warrants are required for
every search or seizure, nor is the existence of a warrant a sine
qua non for a reasonable search or seizure. While the text plainly
mandates reasonableness in the seizure, it does not instruct
whether a warrant is necessary to ensure the reasonableness of the
City’s demolition order.
To determine the necessity of a warrant here, we might
consider common law at the time the Fourth Amendment was adopted,
see Wyoming v. Houghton, 526 U.S. 295, 299, 119 S. Ct. 1297, 1300
(1999), but, contrary to plaintiffs’ assertions, the quest would be
fruitless. Confusing the demands of due process with the warrant
clause, plaintiffs’ historical argument observes that, at common
10
law, apart from cases where a nuisance posing an imminent danger
could be summarily abated by self-help, structures were ordinarily
determined to be nuisances in criminal or civil abatement actions.
Because the courts at the time of the framing of the Constitution
oversaw nuisance law, plaintiffs assume that they must continue
constitutionally to play a role under the aegis of the Warrant
Clause. There are two serious flaws in this argument. First, none
of the cases cited by the plaintiffs deals with warrants.6
Instead, cases from the nineteenth century involved judicial review
to determine whether structures or activities were in fact
injurious under state and local police power.7 Other cases
evaluated nuisance determinations by the standards of procedural
6
The federal government lacked authority over nuisances at
and after the time of the framing, and the Fourth Amendment was not
first applied to the states until 1961. Mapp v. Ohio, 367 U.S. 643,
646-47, 81 S. Ct. 1684, 1686-87 (1961).
7
See Yates v. Milwaukee, 77 U.S. 497, 505, 19 L. Ed. 984
(1870)(“It is a doctrine not to be tolerated in this country, that
a municipal corporation, without any general laws either of the
city or of the State, within which a given structure can be shown
to be a nuisance, can, by its mere declaration that it is one,
subject it to removal by any person supposed to be aggrieved, or
even by the city itself.”); Hennessy v. St. Paul, 37 F. 565, 566
(C.C. Minn. 1889)(“[U]nless a nuisance, as defined by the common
law or by statute, exists, the act of the common council cannot
make it one by a mere resolution. Such a doctrine might place the
property of the people, no matter what in fact might be its real
condition and character, at the disposal of the common council,
without compensation.”); Underwood v. Green, 42 N.Y. 140 (N.Y.
1870); J.E. Macy, Annotation, Constitutional Rights of Owner as
Against Destruction of Building by Public Authorities, 14 A.L.R. 2d
73, *8 (1950) (“[N]either at common law nor under such express
power can it, by its mere declaration that specified property is a
nuisance, make it one when in fact it is not.”).
11
and substantive due process.8 Whatever these cases may imply about
the historical view of the reasonableness of particular nuisance
decisions, they say nothing about employing the Warrant Clause to
review those decisions.
Second, the plaintiffs theorize that because nuisance
determinations historically involved judicial procedures, such
determinations can only be “reasonable” today if they are subject
to plenary court review. This theory is fundamentally at odds with
the development of governmental administrative agencies.
Characteristically, agency decisions are deferred to by the courts.
Plaintiffs apparently seek, however, to broaden courts’ involvement
in nuisance decision-making contrary both to the deferential
8
See, e.g., Lawton v. Steele,152 U.S. 133, 141, 14 S.
Ct. 499, 502 (1894) (“If the property were of great value . . . it
would be putting a dangerous power in the hands of a custom officer
to permit him to sell or destroy it as a public nuisance, and the
owner would have good reason to complain of such act as depriving
him of his property without due process of law.”); Mugler v.
Kansas, 123 U.S. 623, 8 S. Ct. 273, 301 (1887)(“The exercise of the
police power by the destruction of property which is itself a
public nuisance, or the prohibition of its use in a particular way,
whereby its value becomes depreciated, is very different from
taking property for public use, or from depriving a person of his
property without due process of law.”); Our House v. The State, 4
Greene 172, 1853 WL 221, *2 (Iowa 1853)(holding that a law
declaring “dram shops” to be public nuisances, authorizing their
abatement, and establishing certain procedures for notice and a
hearing “does not deprive a person of his property without due
process of law”). The notion of substantive due process survives
in challenges to municipal zoning and nuisance decisions, as this
court has recently held. John Corp. v. City of Houston, 214 F.3d
573, 581-86 (5th Cir. 2000) (allegation that city deprived
landowners of property by allowing demolition under
unconstitutionally vague ordinance states cognizable substantive
due process claim).
12
standard of judicial review of administrative decisions and to the
broad standards for issuance of warrants. None of the decisions
produced by plaintiffs justifies reverting to the 18th century
judicial role in nuisance abatement. This court’s comment in
rejecting, over twenty-five years ago, a similar argument for
reinstituting common law judicial review of nuisance determinations
bears repeating:
[F]or the purposes of marking the limits of federal
constitutional due process the common law of nuisance
must be considered a jurisprudential artifact,
interesting but not controlling.
Traylor v. City of Amarillo, 492 F.2d 1156, 1159 (5th Cir. 1974)
(Goldberg, J.). Even more emphatically, the common law of nuisance
affords no basis for creating a per se judicial warrant requirement
that is redundant of procedural and substantive safeguards inherent
in modern administrative law and explicit municipal nuisance
ordinances.
Where history yields no firm answer, a search or seizure
must be evaluated under traditional standards of reasonableness.
Wyoming, 526 U.S. at 300, 119 S. Ct. at 1300. There is no Supreme
Court caselaw directly on point. Still, the Court has expressed an
overarching test of reasonableness that is antagonistic to an
inflexible warrant requirement. Thus, the reasonableness standard
is one that reflects a “‘careful balancing of governmental and
private interests.’” Soldal, 506 U.S. at 71, 113 S. Ct. at 549,
(quoting New Jersey v. T.L.O., 469 U.S. 325, 341, 105 S. Ct. 733,
13
742 (1985)). More recently, the Court reiterated, “as the text of
the Fourth Amendment indicates, the ultimate measure of the
constitutionality of a government search is reasonableness.”
Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 652, 115 S. Ct.
2386, 2390 (1995).9 Vernonia also clearly distinguishes between
the reasonableness of government searches and the warrant
requirement:
Where a search is undertaken by law
enforcement officials to discover evidence of
criminal wrongdoing, this Court has said that
reasonableness generally requires the
obtaining of a judicial warrant. Warrants
cannot be issued, of course, without the
showing of probable cause required by the
Warrant Clause. But a warrant is not required
to establish the reasonableness of all
government searches; and when a warrant is not
required (and the Warrant Clause therefore not
applicable), probable cause is not invariably
required either.10
9
See also City of Indianapolis v. Edmond, 121 S. Ct. 447,
4451 (2000) (“The Fourth Amendment requires that searches and
seizures be reasonable.”); Ohio v. Robinette, 519 U.S. 33, 39, 117
S. Ct. 417, 421 (1996)(“the touchstone of the Fourth Amendment is
reasonableness”) (internal quotations omitted); Whren v. United
States, 517 U.S. 806, 817, 116 S. Ct. 1769, 1776 (1996)(“It is of
course true that in principle every Fourth Amendment case, since it
turns upon a reasonableness determination, involves a balancing of
all relevant factors.”)(quotations omitted); Camara v. Municipal
Court of San Francisco, 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 930
(1967)(“[R]easonableness is still the ultimate standard [under the
Fourth Amendment].”); Carroll v. United States, 267 U.S. 132, 147,
45 S. Ct. 280, 283, 69 L. Ed. 543 (1925)(“The Fourth Amendment does
not denounce all searches and seizures, but only such as are
unreasonable.”).
10
The Court goes on in the same paragraph of Vernonia to
state that:
A search unsupported by probable cause can be
14
Vernonia, 515 U.S. at 653, 115 S. Ct. at 2390-91 (emphasis added)
(citations omitted). Under these decisions, the fundamental
inquiry, which we will address in detail later, is the
reasonableness of the City’s seizure.
The property owners contend, however, and this court’s
panel opinion held that, the seizure of their property was per se
unreasonable unless the City obtained a warrant to enforce its
demolition order. In support of this position, plaintiffs and the
panel majority rely on a handful of cases. Their reliance is
misplaced.
In companion cases, the Court did extend a warrant
requirement of a sort to administrative inspections of private
homes and business properties, the purpose of which was to verify
compliance with municipal health and safety codes. Camara v.
Municipal Court of San Francisco, 387 U.S. 523, 87 S. Ct. 1727
(1967); See v. City of Seattle, 387 U.S. 541, 87 S. Ct. 1737
(1967). Evidence of code violations uncovered by the warrantless
searches might lead to fines or other penalties. Balancing the
need for searches against the property owners’ privacy, the Court
constitutional, we have said, ‘when special needs, beyond
the normal need for law enforcement, make the warrant and
probable-cause requirement impracticable’.
515 U.S. at 653, 115 S. Ct. at 2391. By its terms, and by the
Court’s further explanation, the “special needs” caveat tends to
expand rather than narrow exceptions to the warrant requirement.
Further, “special needs” are relevant to relaxation of the
probable-cause basis for a government search for evidence. Here,
however, there is probable cause for the City’s seizure.
15
concluded that warrants were necessary to check the unfettered
discretion code enforcement officers had in the field. A property
owner had “no way of knowing whether enforcement of the municipal
code involved requires inspection of his premises, no way of
knowing the lawful limits of the inspector’s power to search, and
no way of knowing whether the inspector himself is acting under
proper authorization.” Camara, 387 U.S. at 532. Only with the
protection of an administrative warrant would property owners avoid
capricious or overbroad searches.
Camara and See are distinguishable from this case.
First, since searches to gather evidence of regulatory
noncompliance invade citizens’ privacy “without particularized
suspicion of misconduct,”11 they need only satisfy standards of
administrative reasonableness. Marshall v. Barlow’s, Inc., 436
U.S. 307, 320, 98 S. Ct. 1816, 1824 (1978) (requiring only
administrative reasonableness for regulatory searches); Griffin v.
Wisconsin, 483 U.S. 868, 877 n.4, 107 S. Ct. 3164, 3170 n.4 (1987)
(requiring only administrative reasonableness for regulatory
searches). Here, the evidence of municipal code violations had
already been obtained by means unchallenged by the landowners, and
the administrative adjudication of noncompliance has occurred. The
landowners availed themselves of two hearings resulting in a
decision of the seven-member panel of the URSB, and after these
11
City of Indianapolis v. Edmond, ____ U.S. ____, 121 S.
Ct. 447, 451 (2000).
16
proceedings, there remained a possibility of state court judicial
review. What is sought by these plaintiffs is not protection
against an unregulated search for evidence of wrongdoing, but
additional protection to forestall the result of already-determined
wrongdoing.
Second, the URSB, unlike the field code inspectors in
Camara and See, could not operate with unbridled discretion. The
municipal code specifies grounds on which a building may be
determined to be a public nuisance.12 The property owners’ right
to defend the case against their apartment buildings was
procedurally secure. Only by impugning the institutional integrity
of the URSB can one arrive at the conclusion, unsupported in this
record, that it exercised standardless discretion and either
arbitrarily enforced the municipal code or failed to consider the
property owners’ evidence. The nature of the URSB’s adjudicative
function13 imposes more numerous and more transparent constraints
on the URSB than did the evidence-gathering function performed by
field officers randomly inspecting private buildings in Camara and
See.
12
See supra note 2.
13
The Texas Local Government Code describes the agencies
like the URSB as exercising “Quasi Judicial Enforcement of Health
and Safety ordinances.” Subchapter C, Texas Local Gov’t. Code,
Tit. 2, Subtitle D, Ch. 54 (§§ 54.032-54.042).
17
Third, it is hard to understand what protection the
Camara-approved administrative warrant would provide for these
plaintiffs. Camara relaxed the probable cause standard for
issuance of such warrants, requiring only a more general
determination that “legislative or administrative standards for
conducting an area inspection” be reasonable. Camara, 387 U.S at
538, 87 S. Ct. at 1735-36. Camara-style administrative search
warrants need not be issued by judicial officers. See Griffin v.
Wisconsin, 483 U.S. 868, 877 and n.5, 107 S. Ct. 3164, 3170 and n.5
(1987). Plaintiffs also admit that administrative search warrants
may be issued ex parte. While the Court’s standards may
meaningfully constrain officials who enter private property for
inspection purposes, they are obviously ill-suited to regulate
completed administrative condemnation proceedings. If a warrant of
some type is to be imposed in lieu of state judicial review, it
must be on terms different from the Camara warrants in order to
assist these landowners. But if the terms are different, then a
different justification is necessary.
Camara and See thus doubly fail to support the
plaintiffs’ argument. Those cases imply either that seizure of the
apartment buildings was preceded by reasonable, rigorous procedures
that protected the property owners’ rights, or they mandate an ex
parte, possibly nonjudicial administrative warrant shorn of
probable cause, which does the property owners no good. While
18
useful in their sphere, these cases fail to support a warrant
following a completed nuisance abatement procedure.
The landowners have also cited Soldal in support of their
warrant argument, but Soldal is not even a warrant case. The only
issue decided by Soldal was whether the nonjudicial eviction-by-
relocation of the tenants’ mobile home, with sheriffs’ deputies
assisting, constituted a seizure within the Fourth Amendment. The
Court refused to consider whether the seizure was constitutionally
reasonable, as it stated:
Whether the [4th] Amendment was in fact violated is, of
course, a different question that requires determining if
the seizure was reasonable. That inquiry entails the
weighing of various factors and is not before us.
Soldal, 506 U.S. at 62, 113 S. Ct. at 543.
In the final case offered by plaintiffs, the Supreme
Court held that the IRS must obtain a warrant to search private
premises to locate property that may be seized to enforce a valid
federal tax lien. GM Leasing Corp. v. United States, 429 U.S. 338,
97 S. Ct. 619 (1977). More significantly for present purposes, the
Court distinguished a search for unidentified nonexempt property
from a seizure, and it rejected requiring a warrant for seizures of
the taxpayer’s vehicles from property where the seizures “did not
involve any invasion of privacy.” 429 U.S. at 351, 97 S. Ct. at
628. Similarly in this case, the plaintiffs retained little or no
reasonable expectation of privacy in their dilapidated, uninhabited
rental properties after the URSB had entered orders declaring them
19
an urban nuisance, and the owners had failed to abate the code
violations.
GM Leasing also states that where seizures are
sustainable under the Due Process Clause, constitutional analysis
of the same acts under the Fourth Amendment “is similar and yields
a like result.” Id. at n.18. Texas’s administrative condemnation
procedures have withstood due process challenge. Traylor v. City
of Amarillo, 492 F.2d 1156 (5th Cir. 1974). Far from supporting
the plaintiffs, GM Leasing thus forecasts, even if it does not
compel, that a balancing of the public and private interests at
stake will favor the public interest in nuisance abatement after
the conclusion of adequate administrative proceedings.
Not only does plaintiffs’ theory lack support in Supreme
Court caselaw, but it enjoys only minority support among the
federal circuits. The Eighth and Sixth Circuits have found no
Fourth Amendment bar to warrantless condemnation and eviction
proceedings, where satisfactory administrative procedures preceded
them. Samuels v. Meriwether, 94 F.3d 1163 (8th Cir. 1996); Hroch
v. City of Omaha, 4 F.3d 693 (8th Cir. 1993); Flatford v. City of
Monroe, 17 F.3d 162, 170 (6th Cir. 1994). On the other hand, a
divided panel of the Ninth Circuit held that a warrant was
necessary before city officials could enter private property to
seize previously-condemned automobiles. Conner v. City of Santa
Ana, 897 F.2d 1487, 1495 (9th Cir. 1990). We disagree with Conner
20
for reasons stated in Judge Trott’s dissent, 897 F.2d at 1494-98,
and based on our evaluation of Fourth Amendment reasonableness.
Although the City did not have to obtain a warrant to
effectuate a valid seizure and demolition of the nuisance
structures, the fundamental Fourth Amendment question of
reasonableness remains, a question decided by balancing the public
and private interests at stake.
As the Supreme Court has acknowledged, “the public
interest demands that all dangerous conditions be prevented or
abated.” Camara, 387 U.S. at 537, 87 S. Ct. 1735. Regulation of
nuisance properties is at the heart of the municipal police power.14
It is eminently reasonable for a city to prescribe minimum property
maintenance standards to protect the public and to maintain
adjacent land values. Nevertheless, a city may not arbitrarily
enter abatement orders or declare the existence of nuisances with
14
While the Supreme Court has not specifically defined the
scope of the police power, it has reaffirmed the “classic
statement” of the rule:
‘To justify the State in . . . interposing its authority
in behalf of the public, it must appear, first, that the
interests of the public . . . require such interference;
and, second, that the means are reasonably necessary for
the accomplishment of the purpose, and not unduly
oppressive upon individuals.’ Even this rule is not
applied with strict precision, for this Court has often
said that ‘debatable questions as to reasonableness are
not for the courts but for the legislature. . . .’
Goldblatt v. Town of Hempstead, 369 U.S. 590, 594-95, 82 S. Ct.
987, 990 (1962)(citations omitted).
21
no underlying standards. Texas law forbids such actions,15 and the
City’s ordinance exemplifies the state statutes’ criteria.
Contrary to the landowners’ argument, Dallas’s minimum standards
for property owners assure structural soundness, public health and
safety and human habitability. The Dallas ordinance is not
concerned with aesthetic or non-functional values. The ordinance
falls well within the City’s police power and thus within a sphere
that courts have traditionally been reluctant to invade.
Prescription of standards necessitates their enforcement,
and it is also reasonable that nuisance abatement be one of the
enforcement mechanisms available to the City. While abatement is
permissible, however, the City ordinance affords property owners
the opportunity to contest the determination of non-compliance, to
repair their property, or to seek other remedies. Dallas’s
procedures include reasonable notice to and time limits upon
landowners’ actions, multiple hearing possibilities, flexible
remedies, and judicial review in state court under typical criteria
for review of administrative actions.16 That these standards
comport with due process suggests the Fourth Amendment
reasonableness of the URSB’s final remedial orders.
15
See generally, Tex. Loc. Govt. Code, Tit. 2, Subtitle D,
ch. 54.
16
Indeed, the grounds for state court judicial review are
nearly identical to those standards employed historically by courts
in reviewing nuisance decisions, i.e. the decisions on which
plaintiffs seek to build the edifice of their warrant requirement.
22
With regard to the landowners’ interests, the Fourth
Amendment protects only those expectations of privacy that society
recognizes as “legitimate”. New Jersey v. T.L.O., 469 U.S. 325,
338, 105 S. Ct. 733, 741 (1984). “What expectations are legitimate
varies, of course, with context . . . [and] . . . may depend upon
the individual’s legal relationship with the State”. Vernonia, 515
U.S. at 654, 115 S. Ct. at 2391. Because the Dallas nuisance
standards are straightforward and the administrative procedure is
adequate, these property owners’ expectation of privacy in the
nuisance structures after the remedial orders became final was
severely diminished. As vacant commercial properties, the
structures were not subject to the same degree of privacy
protection as non-business property. New York v. Burger, 482 U.S.
691, 700, 107 S. Ct. 2636, 2642 (1987); O’Connor v. Ortega, 480
U.S. 709, 725, 107 S. Ct. 1492, 1501 (1987). Further, nearly a
year had passed since the plaintiffs were informed of their
structures’ non-compliance. While they did defend themselves
before the URSB, they made no significant progress in remedying
violations whose total repair cost was nearly $200,000. Whereas
the landowners in Soldal were the victims of non-judicial eviction
without prior notice, these plaintiffs had ample notice and a full
panoply of administrative remedies. Finally, since the rent
properties were uninhabited, the demolition, unlike the eviction
carried out in Soldal, did not invade anyone’s personal privacy.
23
Requiring an administrative warrant of some sort after
the URSB proceedings would not have enhanced the landowners’
security or privacy. A Camara warrant could be sought ex parte; it
could be obtained solely on the basis of the completed
administrative record; no requirements of pre- or post-warrant
notification of the City’s intended actions were necessary. If the
purpose of a warrant is to obtain some neutral review of the URSB
orders, this procedure is less protective of the landowners than
existing judicial review in state court.
The ultimate test of reasonableness is fulfilled in this
case by the City’s adherence to its ordinances and procedures as a
prelude to ordering the landowners to abate their nuisance
structures.17 The Supreme Court originally extended an
administrative warrant requirement to civil investigations because
“the basic purpose of [the Fourth] Amendment . . . is to safeguard
the privacy and security of individuals against arbitrary invasions
by governmental officials.” Camara, 387 U.S. at 528, 87 S. Ct. at
17
In reaching this conclusion, we do not ignore Soldal’s
mandate that a particular government action may implicate more than
one constitutional provision. Soldal, 506 U.S. at 70, 113 S. Ct.
at 538. A particular nuisance determination might be reviewable
under the Takings Clause or Substantive Due Process as well as the
Fourth Amendment or Procedural Due Process standards. John Corp.
v. City of Houston, 214 F.3d 573 (5th Cir. 2000). But the Fourth
Amendment reasonableness of a seizure and demolition of nuisance
property will ordinarily be established when the substantive and
procedural safeguards inherent in state and municipal property
standards ordinances have been fulfilled. See Samuels, 94 F.3d at
1168.
24
1730 (emphasis added); see also Marshall, 436 U.S. at 312, 98 S.
Ct. at 1820. Whatever else the City’s enforcement of its municipal
habitation code might be, it is sufficiently hedged about by
published standards, quasi-judicial administrative proceedings, and
flexible remedies that it is not arbitrary. In the context of
reviewing civil administrative and regulatory enforcement of laws
enacted pursuant to the traditional police power, Fourth Amendment
reasonableness means non-arbitrariness. The Fourth Amendment was
not violated here.18
CONCLUSION
For all these reasons, we conclude that the seizure and
demolition of the plaintiffs’ apartment buildings, after those
structures were condemned according to City ordinance and state
law, were reasonable under the Fourth Amendment. The judgment
against the City is REVERSED.
18
Cf. Soldal, 506 U.S. at 71, 113 S. Ct. at 549 (“Assuming
. . . that the [evicting] officers were acting pursuant to a court
order . . . a showing of unreasonableness would be a laborious task
indeed.”). Likewise, we believe a showing of unreasonableness in
the face of the City’s adherence to its ordinance is a “laborious
task indeed.”
25
DENNIS, Circuit Judge, with whom WIENER, BENAVIDES and STEWART,
Circuit Judges, join in Part I only, dissenting:
The en banc majority reaches the conclusion that, while
binding Supreme Court precedent interpreting the Fourth Amendment’s
proscription of unreasonable searches would clearly require the
URSB to secure a warrant from a neutral judicial officer to conduct
an inspection of the two apartment buildings in the absence of
consent or exigent circumstances, the Fourth Amendment’s
proscription of unreasonable seizures, as illumined by the same and
additional Supreme Court precedent, does not require the URSB to
secure such a warrant before demolishing the same apartment
buildings. Unable to square this anomalous result with the
language of the Fourth Amendment or Supreme Court jurisprudence,
I dissent.
I. FOURTH AMENDMENT
A. Camara, Soldal, and Freeman
The Freeman panel majority holding that the URSB violated the
owners’ Fourth Amendment rights correctly follows the Supreme
Court’s Fourth Amendment decisions in Soldal v. Cook County, Ill.,
506 U.S. 56 (1992), and Camara v. Mun. Court of San Francisco, 387
U.S. 523 (1967).
In Frank v. Maryland, 359 U.S. 360 (1959) (5-4 decision),
overruled by Camara, 387 U.S. at 523 (1967), the Court upheld, by
a five-to-four vote, a state court conviction of a homeowner who
26
refused to permit a municipal health inspector to enter and inspect
his premises without a search warrant. In his majority opinion,
Justice Frankfurter suggested that the individual and his private
property are fully protected by the Fourth Amendment only when the
individual is suspected of criminal behavior, and that a warrant is
not required for an administrative inspection because the “power
[to inspect dwellings to maintain community health] would be
greatly hobbled by the blanket requirement of the safeguards
necessary for a search of evidence of criminal acts.” Id. at 372.
In Camara, 387 U.S. at 534, the Court expressly overruled
Frank v. Maryland, holding that under the Fourth Amendment a lessee
of the ground floor of an apartment building had a constitutional
right to insist that San Francisco Department of Public Health
Housing Code inspectors obtain a judicial warrant to inspect his
premises, and that he could not be constitutionally convicted for
refusal to consent to the inspection. The Dallas URSB advances the
same “public necessity” arguments in support of warrantless, non-
exigent seizures and destruction of private property that the Court
firmly rejected as insufficient to uphold San Francisco’s
warrantless, non-exigent housing code inspections in Camara. San
Francisco argued that (i) the ordinances authorizing inspections
are hedged with safeguards and the inspector’s decision to enter
must comply with the standard of reasonableness even if he may
enter without a warrant, id. at 531; (ii) the warrant process could
27
not function effectively in this field, id. at 532; and (iii) the
public interest demands warrantless administrative searches as the
only effective means of enforcing minimum fire, housing, and
sanitation standards, id. at 533. As Justice White, writing for
the Camara majority, explained:
In our opinion, these arguments unduly discount the
purposes behind the warrant machinery contemplated by the
Fourth Amendment. Under the present system, when the
inspector demands entry, the occupant has no way of
knowing whether enforcement of the municipal code
involved requires inspection of his premises, no way of
knowing the lawful limits of the inspector’s power to
search, and no way of knowing whether the inspector
himself is acting under proper authorization. These are
questions which may be reviewed by a neutral magistrate
without any reassessment of the basic agency decision to
canvass an area. . . . We simply cannot say that the
protections provided by the warrant procedure are not
needed in this context; broad statutory safeguards are no
substitute for individualized review, particularly when
those safeguards may only be invoked at the risk of a
criminal penalty.
. . . It has nowhere been urged that fire, health,
and housing code inspection programs could not achieve
their goals within the confines of a reasonable warrant
requirement. Thus, we do not find the public need
argument dispositive.
In summary, we hold that administrative searches of
the kind at issue here are significant intrusions upon
28
the interests protected by the Fourth Amendment, that
such searches when authorized and conducted without a
warrant procedure lack the traditional safeguards which
the Fourth Amendment guarantees to the individual, and
that the reasons put forth in Frank v. State of Maryland
and in other cases for upholding these warrantless
searches are insufficient to justify so substantial a
weakening of the Fourth Amendment’s protections.
Id. at 532-34.
Thus, Camara held that, in the absence of consent or an
emergency situation, the Fourth Amendment requires that a warrant
be issued by a judicial officer before a government entity may
inspect private property to enforce minimum health and safety
standards for the prevention of “fires and epidemics” or “unsightly
conditions adversely affect[ing] the economic values of neighboring
structures.” Id. at 534, 535, & 539-40.
In the second part of its opinion, the Court in Camara
discussed the type of “probable cause” required for a warrant to
enter and inspect private property. The Court concluded that “‘a
health official need [not] show the same kind of proof to a
magistrate as one must who would search for the fruits or
instrumentalities of crime.’” Id. at 538 (quoting Frank, 359 U.S.
at 383) (Douglas, J., dissenting)). Instead, the satisfaction of
reasonable legislative or administrative standards for inspections
may be used to show “probable cause,” such as the passage of time,
the nature of the buildings, the condition of the entire area, or
29
other factors not necessarily dependent upon specific knowledge of
the condition of a particular dwelling. See id. “[R]easonableness
is still the ultimate standard. If a valid public interest
justifies the intrusion contemplated, then there is probable cause
to issue a suitably restricted warrant.” Id. at 539.19
In Soldal, 506 U.S. at 61, the Court held that the presence of
deputy sheriffs for the purpose of forestalling the Soldal family’s
resistance while a trailer park operator seized and removed the
family’s house trailer from the park, without a warrant, eviction
judgment, other judicial order, or exigent circumstances, clearly
implicated the Soldals’ Fourth Amendment rights. In an unanimous
opinion by Justice White, the Court rejected the Seventh Circuit’s
narrow reading of the Amendment, which the Circuit construed as
safeguarding only privacy and liberty interests while leaving
unprotected possessory interests when neither privacy nor liberty
is at stake. Id. at 62. The Court held that “[t]he Amendment
protects the people from unreasonable searches and seizures of
‘their persons, houses, papers, and effects.’ This language surely
cuts against the novel holding below, and our cases unmistakably
hold that the Amendment protects property as well as privacy.” Id.
19
In See v. City of Seattle, 387 U.S. 541 (1967), decided the
same day as Camara, the Court held that the Fourth Amendment
forbids warrantless inspections of commercial structures as well as
private residences. “[T]he basic component of a reasonable search
under the Fourth Amendment–that it not be enforced without a
suitable warrant procedure–is applicable in this context, as in
others, to business as well as to residential premises.” Id. at
546.
30
The Court pointed to its decisions explaining that a “seizure” of
property occurs when “‘there is some meaningful interference with
an individual’s possessory interests in that property,’” id. at 61
(quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984)), and
concluded: “We fail to see how being unceremoniously dispossessed
of one’s home in the manner alleged to have occurred here can be
viewed as anything but a seizure invoking the protection of the
Fourth Amendment.” Id.
The Court in Soldal stopped short of deciding whether the
seizure was a violation of the Fourth Amendment because the Seventh
Circuit had failed to reach that issue due to its incorrect
decision that there had been no “seizure.” A careful reading of
the Court’s unanimous Soldal opinion, however, strongly suggests
that a violation had occurred under Fourth Amendment law because
(1) the dispossession of the Soldals of their trailer home was a
“seizure” because it was a “meaningful interference” with their
possessory interest, id. at 61, not an insignificant interference
associated with a “garden-variety” landlord-tenant or commercial
dispute, id. at 72; (2) the deputies were acting under color of
state law in assisting in the seizure, id. at 60 n.6 & 71; (3) the
officers were not acting pursuant to a warrant or other judicial
order, id. at 58 and 71; (4) there was no probable cause to
associate the seized property with criminal activity, id. at 68;
31
and (5) there was no emergency situation because the seizure could
have “properly awaited the state court’s judgment,” id. at 71.
The Court noted that the Seventh Circuit had correctly
acknowledged that, under the Supreme Court’s precedents, the Fourth
Amendment’s protection applies in the civil as well as the criminal
context. Id. at 67. But the Supreme Court concluded that the
Circuit had erred when it seemingly construed the Amendment to
protect only against seizures that are the outcome of a search.
Id. at 68. “[O]ur cases are to the contrary and hold that seizures
of property are subject to Fourth Amendment scrutiny even though no
search within the meaning of the Amendment has taken place.” Id.
The Supreme Court explained that the Seventh Circuit’s construction
of the Fourth Amendment to protect only against seizures that are
the outcome of a search is at odds with the Supreme Court’s plain-
view cases in which seizures of property are subject to Fourth
Amendment scrutiny even though no search within the meaning of the
Amendment has taken place. Id. at 68 (citing United States v.
Jacobsen, 466 U.S. at 120-25; United States v. Place, 462 U.S. 696,
706-07 (1983); Cardwell v. Lewis, 417 U.S. 583, 588-89 (1974)).
“For the plain-view cases clearly state that, notwithstanding the
absence of any interference with privacy, seizures of effects that
are not authorized by warrant are reasonable only because there is
probable cause to associate the property with criminal activity.”
Id. at 69.
32
Significantly, the Court also made it clear that the Fourth
Amendment protections are triggered when a government entity seizes
a building to enforce compliance with housing regulations, stating:
In our view, the reason why an officer might enter a
house or effectuate a seizure is wholly irrelevant to the
threshold question whether the Amendment applies. What
matters is the intrusion on the people’s security from
governmental interference. Therefore, the right against
unreasonable seizures would be no less transgressed if
the seizure of the house was undertaken to collect
evidence, verify compliance with a housing regulation,
effect an eviction by the police, or on a whim, for no
reason at all. As we have observed on more than one
occasion, it would be “anomalous to say that the
individual and his private property are fully protected
by the Fourth Amendment only when the individual is
suspected of criminal behavior.”
Id. at 69 (quoting Camara, 387 U.S. at 530).20
Finally, the Court in Soldal characterized as “exaggerated”
the fears of the Seventh Circuit and Cook County that applying the
Fourth Amendment in this context will federalize areas of law
traditionally the concern of the states, such as routine
20
See also United States v. Jacobsen, 466 U.S. at 125 n.28
(relied on prominently in Soldal, in which the Court issued the
following caveat: “Of course, where more substantial invasions
[than taking a trace of powder for a chemical test] of
constitutionally protected interests are involved, a warrantless
search or seizure is unreasonable in the absence of exigent
circumstances.” (citing Steagald v. United States, 451 U.S. 204
(1981); Payton v. New York, 445 U.S. 573 (1980); Dunaway v. New
York, 442 U.S. 200 (1979); United States v. Chadwick, 433 U.S. 1
(1977))).
33
repossessions, negligent actions of public employees that interfere
with individuals’ right to enjoy their homes, and the like. Id. at
71. The Court’s opinion expressly or impliedly indicates several
reasons for this conclusion: (1) activities by state actors such as
repossessions or attachments that involve entry into the home,
intrusion on individuals’ privacy, or interference with their
liberty, have long been recognized as implicating Fourth Amendment
rights; (2) if the state action does not involve privacy or liberty
interests,“‘reasonableness is still the ultimate standard[. If a
valid public interest justifies the intrusion contemplated, then
there is probable cause to issue a suitably restricted search
warrant.]’” Id. (quoting Camara, 387 U.S. at 539) (bracketed
material added. See Camara, 387 U.S. at 539). Thus, generally
speaking, a state officer will not violate the Fourth Amendment
when his acts under color of law are (a) pursuant to a warrant or
other judicial or court order, see id.; (b) in emergency
situations, see Camara, 387 U.S. at 539; or (c) insignificant
interferences associated with “garden variety” commercial or
landlord-tenant disputes, Soldal, 506 U.S. at 72, rather than “some
meaningful interference with an individual’s possessory interests
in . . . property.” Id. at 61 (quoting Jacobsen, 466 U.S. at 113).
For these reasons, it is evident that, if the Court in Soldal had
been required to reach the issue, it would have concluded that the
seizure in which the Soldals were “unceremoniously dispossessed” of
34
their trailer home, without a warrant, eviction judgment, or other
judicial order, and in the absence of any emergency, was a
violation of the Soldals’ Fourth Amendment rights.21
Correspondingly, the Dallas URSB’s seizure and
destruction of the private property owners’ edifices were
“meaningful interferences” with their possessory interests in their
buildings, not a “garden-variety” commercial or landlord-tenant
controversy. On the contrary, it was a seizure and destruction of
private property that was at least as invasive as the removal of a
house trailer from a trailer park or the seizure of a building
“undertaken to collect evidence, verify compliance with a housing
regulation, effect an eviction by the police, or on a whim, for no
reason at all.” Soldal, 506 U.S. at 69. Consequently, the
administrative seizures and demolitions by the URSB at issue in the
present case were significant intrusions upon the interests of
private property owners protected by the Fourth Amendment, and such
seizures and demolitions by the URSB, a government entity acting
under color of state law, not pursuant to a judicial warrant or
court order, and not in an emergency situation, are clear
21
On remand, in light of the Supreme Court’s decision, the
district court concluded that the defendants were not entitled to
qualified immunity. “Because we determine that plaintiffs’
allegations support an inference that the defendants were aware of
circumstances making their actions unreasonable, and hence,
illegal, we refuse to dismiss the action.” Soldal v. County of
Cook, No. 88C7654, 1993 WL 199050, *5 n.1 (N.D. Ill. June 10,
1993).
35
violations of the Fourth and Fourteenth Amendments. See Camara,
387 U.S. at 534; Soldal, 506 U.S. at 66-67.
B. This Court Is Bound By Camara and See, Not Frank v. Maryland
A Federal Court of Appeals is bound by the decisions of the
Supreme Court, even if the intermediate appellate judges think that
a Supreme Court decision is unsound or in error. See Thurston
Motor Lines, Inc. v. Jordan K. Rand, Ltd., 460 U.S. 533, 535
(1983); Hutto v. Davis, 454 U.S. 370, 375 (1982); Jaffree v.
Wallace, 705 F.2d 1526, 1532-33 (11th Cir. 1983)(citing and quoting
Stell v. Savannah-Chatam County Bd. of Educ., 333 F.2d 55, 61 (5th
Cir. 1964), overruled in part on other grounds by United States v.
Jefferson County Bd. of Educ., 380 F.2d 385 (1967)); United States
v. Twin City Power Co. of Georgia, 253 F.2d 197, 205 (5th Cir.
1958); Marcello v. Ahrens, 212 F.2d 830, 839 (5th Cir. 1954), aff’d,
349 U.S. 302 (1955). Accordingly, this court must follow Camara
and See, which held that, because of the Fourth Amendment,
administrative entry or invasion of private residential or
commercial property, without consent or an emergency situation, may
only be compelled within the framework of a suitable judicial
warrant procedure.
Nevertheless, the majority concludes that the district court
and the panel Fourth Amendment majority were wrong in holding that
the URSB violated the building owners’ Fourth Amendment rights by
seizing and destroying their private property without consent or a
36
warrant and in the absence of exigent circumstances. This
conclusion is based on a common theme, (i) that the Fourth
Amendment does not require a judicial warrant procedure to protect
individuals from meaningful interferences with their possessory
interests in private property by governmental entities; (ii)
instead, the Amendment only protects such individuals by the
deterrent effects of reparations under § 1983 if it is determined
ex post facto that private property was seized or destroyed
“unreasonably” according to a standard of reasonableness or a
balancing of private and public interests. In effect, the majority
seems to think that the warrant requirements of Camara and See have
been overruled and Frank v. Maryland’s warrantless standard of
reasonableness has been resurrected in their place.
Similarly, the majority’s reasoning erroneously suggests that
Justice White’s references in part III of Soldal to Camara and New
Jersey v. T.L.O., 469 U.S. 325 (1985), somehow signal approval of
warrantless seizures of private property, without consent or
exigent circumstances, by officers acting under color of law, so
long as the officers comply with a standard of reasonableness
reflecting a careful balancing of public and private interests.
The passage containing those references, part of Justice White’s
explanation that Soldal’s interpretation of the Fourth Amendment
involves little or no risk of federalizing state law, states:
More significantly, “reasonableness is still the ultimate
standard” under the Fourth Amendment, Camara, supra, 387
37
U.S., at 539, 87 S.Ct., at 1736, which means that
numerous seizures of this type will survive
constitutional scrutiny. As is true in other
circumstances, the reasonableness determination will
reflect a "careful balancing of governmental and private
interests." T.L.O., supra, 469 U.S., at 341, 105 S. Ct.,
at 742. Assuming, for example, that the officers were
acting pursuant to a court order, as in Specht v. Jensen,
832 F.2d 1516 (CA10 1987), or Fuentes v. Shevin, 407
U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972), and as
often would be the case, a showing of unreasonableness on
these facts would be a laborious task indeed. Cf. Simms
v. Slacum, 3 Cranch 300, 301, 2 L. Ed. 446 (1806). Hence,
while there is no guarantee against the filing of
frivolous suits, had the ejection in this case properly
awaited the state court's judgment it is quite unlikely
that the federal court would have been bothered with a §
1983 action alleging a Fourth Amendment violation.
Soldal, 506 U.S. at 71.
A careful reading of the complete passages from which Justice
White quoted in the forgoing paragraph shows that he, as the author
of Camara, T.L.O., and Soldal, did not in any of those passages
suggest dispensing with the warrant procedure. To the contrary, he
consistently repeated the idea he expressed for the Court in
Camara, “that a health official need not show the same kind of
proof to a magistrate to obtain a warrant as one must who would
search for the fruits or instrumentalities of crime.” Camara, 387
U.S. at 538. Later in Camara, in the passage partially quoted in
Soldal, Justice White stated: “The warrant procedure is designed to
38
guarantee that a decision to search private property is justified
by a reasonable governmental interest. But reasonableness is still
the ultimate standard. If a valid public interest justifies the
intrusion contemplated, then there is probable cause to issue a
suitably restricted search warrant.” Id. at 539. The same day in
See, he expressed these ideas in a different way:
The agency’s particular demand for access will of course
be measured, in terms of probable cause to issue a
warrant, against a flexible standard of reasonableness
that takes into account the public need for effective
enforcement of the particular regulation involved. But
the decision to enter and inspect will not be the product
of the unreviewed discretion of the enforcement officer
in the field.
See, 387 U.S. at 545 (footnote omitted). His full sentence
describing the flexible probable cause concept in T.L.O., reads:
“Where a careful balancing of governmental and private interests
suggests that the public interest is best served by a Fourth
Amendment standard of reasonableness that stops short of probable
cause, we have not hesitated to adopt such a standard.” T.L.O.,
469 U.S. at 341.
Justice White also wrote for the Supreme Court in Marshall v.
Barlow’s, Inc., 436 U.S. 307, 325 (1978), which held that, under
the warrant clause of the Fourth Amendment, the Occupational Safety
and Health Act (OSHA) is unconstitutional to the extent that it
would permit inspections of private businesses by OSHA inspectors
39
without a warrant or its equivalent. He began by reaffirming that
“[t]he Warrant Clause of the Fourth Amendment protects commercial
buildings as well as private homes”, id. at 311, and that,
accordingly, “warrantless searches are generally unreasonable, and
that this rule applies to commercial premises as well as homes.”
Id. at 312. Justice White then discussed Camara and See, and then
concluded “that unless some recognized exception to the warrant
requirement applies, See v. City of Seattle would require a warrant
to conduct the inspection sought in this case.” Id. at 313.
Because of the absence of a recognized exception to the warrant
requirement – such as pervasively regulated businesses in which
entrepreneurs voluntarily choose to subject themselves to the full
arsenal of governmental regulation thereby precluding a reasonable
expectation of privacy (which is clearly the exception and not the
rule) – without a warrant a government inspector “stands in no
better position than a member of the public.” Id. at 313-15.
Most important, in Marshall, Justice White expressly rejected
the Secretary of Labor’s argument that “the enforcement scheme of
the Act requires warrantless searches, and that the restrictions on
search discretion contained in the Act and in its regulations
already protect as much privacy as a warrant would.” Id. at 315.
These are precisely the arguments advanced by the City of Dallas
and accepted by the majority in this case. In fact, as the
following passage aptly demonstrates, these arguments take out of
40
context Soldal’s quotation from Camara (“reasonableness is still
the ultimate standard”) and attribute to it a meaning explicitly
rejected by Justice White:
The Secretary thereby asserts the actual
reasonableness of OSHA searches, whatever the general
rule against warrantless searches might be. Because
“reasonableness is still the ultimate standard,” Camara
v. Municipal Court, 387 U.S., at 539, 87 S. Ct., at 1736,
the Secretary suggests that the Court decide whether a
warrant is needed by arriving at a sensible balance
between the administrative necessities of OSHA
inspections and the incremental protection of privacy of
business owners a warrant would afford. He suggests that
only a decision exempting OSHA inspections from the
warrant clause would give “full recognition to the
competing public and private interests here at stake.”
Ibid.
. . . .
We are unconvinced, however, that requiring warrants
to inspect will impose serious burdens on the inspection
system or the courts, will prevent inspections necessary
to enforce the statute, or will make them less effective.
. . .
Id. at 315-16.
Moreover, Justice White makes crystal clear that
“reasonableness” afforded by the statutory scheme may substitute
for probable cause to issue the warrant, but it may not substitute
for the warrant itself:
Whether the Secretary proceeds to secure a warrant
or other process, with or without prior notice, his
41
entitlement to inspect will not depend on his
demonstrating probable cause to believe that conditions
in violation of OSHA exist on the premises. Probable
cause in the criminal law sense is not required. For
purposes of an administrative search such as this,
probable cause justifying the issuance of a warrant may
be based not only on specific evidence of an existing
violation but also on a showing that “reasonable
legislative or administrative standards for conducting an
. . . inspection are satisfied with respect to a
particular [establishment].” Camara v. Municipal Court,
387 U.S., at 538, 87 S.Ct., at 1736. . . . We doubt that
the consumption of enforcement energies in the obtaining
of such warrants will exceed manageable proportions.
Id. at 320-21 (footnote omitted)(bracketed text in original).
Finally, Justice White rejected the notion “that the
incremental protections afforded the employer’s privacy by a
warrant are so marginal that they fail to justify the
administrative burdens that may be entailed.” Id. at 322.
The authority to make warrantless searches devolves
almost unbridled discretion upon executive and
administrative officers, particularly those in the field,
as to when to search and whom to search. A warrant, by
contrast, would provide assurances from a neutral officer
that the inspection is reasonable under the Constitution,
is authorized by statute, and is pursuant to an
administrative plan containing specific neutral criteria.
Id. at 323(footnote omitted).
Against this background, it is clear that Justice White in the
Soldal paragraph quoting parts of the Camara and T.L.O. passages
42
did not impliedly or silently overrule the principal holding of
Camara that significant administrative intrusions require a warrant
procedure, in the absence of consent or an emergency.22 Read within
the context of the passages from Camara, See, Marshall, and T.L.O.,
describing the flexible standard of reasonableness, it is clear
that in that Soldal paragraph Justice White merely expressed the
opinion that it will be difficult to show a Fourth Amendment
violation when an officer seizes property pursuant to a court
order, if the order was measured and issued according to a
reasonable standard based on a careful balancing of public and
private interests. This meaning is borne out by the citation in
the Soldal paragraph calling upon the reader to reference Simms v.
Slacum, 3 Cranch 300, 301, 7 U.S. 300, 306-07 (1806), in which
Chief Justice Marshall stated:
The judgments of a court of competent jurisdiction,
although obtained by fraud, have never been considered as
absolutely void; and, therefore, all acts performed under
22
In summary, we hold that administrative
searches of the kind at issue here are
significant intrusions upon the interests
protected by the Fourth Amendment, that such
searches when authorized and conducted without
a warrant procedure lack the traditional
safeguards which the Fourth Amendment
guarantees to the individual, and that the
reasons put forth in Frank v. Maryland and in
other cases for upholding these warrantless
searches are insufficient to justify so
substantial a weakening of the Fourth
Amendment protections.
Camara, 387 U.S. at 534.
43
them are valid so far as respects third persons. A
sheriff who levies an execution under a judgment
fraudulently obtained, is not a trespasser, nor can the
person who purchases at a sale under such an execution,
be compelled to relinquish the property he has purchased.
7 U.S. at 306-07.
In short, Camara, See, Marshall, T.L.O., and Soldal all
indicate that under certain circumstances a flexible standard of
reasonableness can substitute for the kind of probable cause that
must be shown by law enforcement officers to obtain a warrant to
search for criminal evidence; they do not support the notion that
reasonableness can substitute for the judicial warrant that is
required before an administrative search or seizure of private
property without consent or an emergency situation.
This court cannot legitimately overrule or disregard Camara
and See, which require a warrant before a municipality can effect
a search or seizure of private residential or commercial property
without consent or emergency circumstances under health, safety,
and building regulations, even if a flexible probable cause or
reasonableness standard has been met.
The language upon which the majority relies in arguing that
Camara and See are inapplicable is taken out of context from the
“special, beyond normal, law enforcement needs” cases that are
inapposite here. The cases the majority cites--Vernonia Sch. Dist.
44
v. Acton (suspicionless random drug testing of high school athletes
in a particular exigent factual situation); Griffin v. Wisconsin
(reasonable grounds search without a warrant of probationer within
legal custody under state law pursuant to a state regulation
authorizing such warrantless searches); New Jersey v. T.L.O.
(search of student’s purse on suspicion of violation of school rule
against smoking)--are those in which the Court has “permitted
exceptions when ‘special needs, beyond the normal need for law
enforcement, make the warrant and probable-cause requirement
impracticable.’” Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 653
(1995) (citing Griffin v. Wisconsin, 483 U.S. 868, 873 (1987)).
The Court in those cases clearly limited the “special needs”
exception to the warrant requirement to special situations in
criminal law enforcement: “A State’s operation of a probation
system, like its operation of a school, government office or
prison, or its supervision of a regulated industry, likewise
presents ‘special needs’ beyond normal law enforcement that may
justify departures from the usual warrant and probable cause
requirements.” Griffin, 483 U.S. at 873-74; see also Chandler v.
Miller, 520 U.S. 305 (1997) (Georgia’s requirement that candidates
for state office pass drug test did not fit within closely guarded
special needs category of constitutionally permissible
suspicionless searches ); United Teachers of New Orleans v. Orleans
Parish Sch. Bd., 142 F.3d 853 (5th Cir. 1998) (school board’s rules
45
violated Fourth Amendment inasmuch as no special needs exception to
requirement of individualized suspicion of wrongdoing applied).
The present case is not a criminal law enforcement case, much
less a “special needs, beyond the normal need for law enforcement”
case, and it is certainly not a case in which the warrant
requirement is impracticable. The majority’s rejection of the
warrant requirement in this case makes it difficult to say that it
exists at all in the Fifth Circuit, except for few persons whose
criminal convictions are reversed because the violation of their
Fourth Amendment rights was so flagrant as to amount to harmful,
reversible error.
C. This Circuit and Others
In concluding that the URSB violated the owners’ Fourth
Amendment rights, the Freeman panel Fourth Amendment majority
decision followed the controlling precedent of this Circuit, and
this decision does not conflict with what is the controlling
precedents of other circuits.
In United States v. Paige, 136 F.3d 1012, 1021 (5th Cir. 1998),
this court recognized that “[t]he Supreme Court recently made clear
that the protection afforded by the Fourth Amendment extends to an
individual’s possessory interests in property, even if his
expectation of privacy in that property has been completely
extinguished.” (citing Soldal, 506 U.S. at 62-63). This court in
Paige also observed that “[g]enerally, ‘seizures conducted outside
46
the judicial process, without prior approval by a judge or
magistrate, are per se unreasonable under the Fourth
Amendment–subject only to a few specifically established and well
delineated exceptions.’” Id. at 1022 (quoting Minnesota v.
Dickerson, 508 U.S. 366, 372 (1993)). The Freeman Fourth Amendment
majority applied Paige’s teachings from the Supreme Court cases of
United States v. Jacobsen, 466 U.S. 109, and United States v.
Place, 462 U.S. 696, to conclude that the URSB seizures do not fall
within an exception to the warrant requirement fashioned in those
cases because the seizures were not lawful and temporary in their
inception, the seizures did not have a de minimis impact on the
owners’ property interests, and it could not be said that the
safeguards of a warrant would have only minimally advanced Fourth
Amendment interests. Freeman v. City of Dallas, 186 F.3d 601, 606
(5th Cir. 1999).
The Freeman Fourth Amendment majority is not inconsistent with
the other Circuits’ leading cases although it is at odds with an
Eighth Circuit case. In Flatford v. City of Monroe, 17 F.3d 162,
170 (6th Cir. 1994), the Sixth Circuit held that under the Fourth
Amendment the plaintiffs “were entitled to pre-eviction judicial
oversight in the absence of emergency circumstances.” That court
also found that the eviction had been predicated upon exigent
circumstances. Id. at 170-71. In Hroch v. City of Omaha, 4 F.3d
693, 697 (8th Cir. 1993), the Eighth Circuit held that the
47
defendants’ actions in implementing the City’s condemnation order
did not constitute an unreasonable seizure in violation of Hroch’s
Fourth Amendment rights. The Hroch court pointed out that a state
court had denied an injunction so that there was judicial oversight
of the condemnation process which provided “a constitutionally
adequate substitute for a warrant.” Id. at 696-97 (citing and
quoting Donovan v. Dewey, 452 U.S. 594, 603 (1981)). In Conner v.
City of Santa Ana, 897 F.2d 1487, 1492 (9th Cir. 1990), the Ninth
Circuit held that a search and seizure of the Conners’ property to
abate a known nuisance without any judicial authorization was
impermissible under the Fourth Amendment. Although Conner was
decided before Soldal, it is consistent with that decision because
it relied on Camara, and Soldal did not change Camara; rather,
Soldal only reaffirmed what had been established before, that the
Fourth Amendment protects property as well as privacy and may
protect property interests even when neither privacy nor liberty is
at stake. Soldal, 506 U.S. at 62-71. In Samuels v. Meriwether, 94
F.3d 1163, 1167-68 (8th Cir. 1996), however, the Eight Circuit
misread Soldal as overruling Camara sub silentio and replacing the
warrant process required by Camara with a reasonableness balancing
test. Soldal does not express or imply such an intention, however,
and it is absurd to attribute to Justice White, the author of both
opinions, an intention to overrule Camara without saying so,
48
particularly since he cites and quotes Camara prominently with
approval in Soldal.
All of these circuit decisions, except Samuels v. Meriwether,
are consistent with a correct reading of Camara, See, and Soldal
which plainly indicate that, in the context of administrative
searches and seizures, compliance with reasonable legislative and
administrative standards may serve as probable cause for a warrant,
but not as a substitute for the warrant procedure itself; see
Camara, 387 U.S. at 538, 545-46; Soldal, 506 U.S. at 71; although
nothing forecloses prompt inspections, even without a warrant, that
the law has traditionally upheld in emergency situations. See
Camara, 387 U.S. at 539.
D. Other Arguments
A number of rationales are advanced by the majority that have
a false appearance of genuineness, but are really only variations
on their main theme of contention:
(1) That only self-imposed reasonableness is required of a
governmental entity in seizing and razing buildings for urban
renewal, and the municipal procedures followed by the URSB assured
sufficient reasonableness in this case. This argument is premised
upon two faulty propositions: (i) that Fourteenth Amendment due
process of law and Fourth Amendment reasonableness analyses are
fungible; and (ii) that Soldal sub silentio overruled Camara and
its warrant requirement for administrative searches and seizures,
49
thereby resurrecting Frank v. Maryland and its warrantless
reasonableness standard. With respect to (i), in Soldal, the
Supreme Court expressly rejected that proposition, stating that
“[c]ertain wrongs affect more than a single right and, accordingly,
can implicate more than one of the Constitution’s commands. Where
such multiple violations are alleged . . . we examine each
constitutional provision in turn.” 506 U.S. at 70; see also United
States v. James Daniel Good Real Prop., 510 U.S. 43, 49-50 (1993)
(in considering claims that the same government conduct violated
both the Fourth Amendment protections against unreasonable seizure
and the Fifth Amendment protections of due process of law, the
Court stated that it has repeatedly rejected the view that the
applicability of one constitutional amendment preempts the
guarantees of another). Flatford, 17 F.3d at 170-71, does not
support the argument either, because it, in effect, merely
concludes that both the Fourth Amendment and Due Process standards
are relaxed where the conduct complained of is justified by exigent
circumstances. With respect to (ii), as demonstrated earlier,
Soldal, a unanimous opinion by Justice White, building on and
citing with approval his own opinion for the court in Camara,
cannot reasonably be read to implicitly or silently overrule
Camara’s core holding that, in the absence of consent or exigent
circumstances, administrative searches or seizures of private
50
houses or buildings without a judicial warrant violate the Fourth
Amendment, and that Frank v. Maryland is expressly overruled.
(2) That the URSB is the functional equivalent of a neutral
and detached judicial officer. The fallacy of this contention is
self-evident. The URSB is an agency of the City of Dallas charged
with the remediation – including the demolition--of structures
deemed by it to constitute urban nuisances. The URSB’s job is to
eliminate unsightly conditions adversely affecting the economic
value of neighboring property and the City’s tax base. The URSB
cannot possibly serve effectively in this executive capacity and
act as a neutral and detached magistrate to safeguard the rights of
the owners whose buildings it determines should be razed. “When
the right of privacy must reasonably yield to the right of search
is, as a rule, to be decided by a judicial officer, not by a
policeman or government enforcement agent.” Camara, 387 U.S. at
529 (citing and quoting Johnson v. United States, 333 U.S. 10, 14
(1948)). This principle applies with equal force to the seizure
and destruction of real property by government enforcement agencies
such as the URSB, because the decision to seize and destroy private
property under these circumstances, like the decision to enter and
inspect, “[can]not be the product of unreviewed discretion of the
enforcement officer in the field.” Id. at 545. Rather, the
“warrant machinery contemplated by the Fourth Amendment” so
prominently emphasized by Justice White is necessarily administered
51
by a “neutral magistrate.” See Camara, 387 U.S. at 532; Marshall,
436 U.S. at 323.
(3) That the warrant process would overburden the URSB. This
argument was rejected firmly by the Supreme Court in Camara, see
387 U.S. at 532, and again in Marshall, 436 U.S. at 321. Moreover,
the step of securing a warrant issued by a neutral and detached
judicial officer is not difficult or time consuming. The property
owner benefits greatly from the safeguarding of his protected
interests that can only be provided by a neutral judicial officer’s
pre-execution approval of the seizure and demolition. In the
present case, as is typical, almost a year passed between the
notices of noncompliance and the ultimate demolition orders. Had
the URSB at the appropriate time during this lengthy period
properly obtained a warrant for the seizure and demolition of the
owners’ buildings, it is almost certain that the federal court
would not have been bothered with this § 1983 action alleging a
Fourth Amendment violation.
(4) That Texas currently has no procedural mechanism for
judicial oversight of public nuisance abatement. However, it
appears that such oversight is provided for by Texas legislated
law. See Tex. Gov’t. Code Ann. §§ 24.08 (district court may hear
and determine any cause cognizable by courts of law or equity), and
24.011 (district court judge may grant all writs necessary to
enforce the court’s jurisdiction). Moreover, judicial oversight of
52
public nuisance abatement in the context of this case is required
by Texas jurisprudence. See City of Houston v. Lurie, 224 S.W.2d
871, 874 (Tex. 1949) (“It has been repeatedly held that the
question whether property is a public nuisance and may be condemned
as such is a justiciable question to be determined by a court.”);
Hart v. City of Dallas, 565 S.W.2d 373, 379 (Tex.Civ.App.-Tyler
1978, no writ) (whether the URSB or the city council made the
determination that the house was a hazard to the health, safety,
and welfare of the citizens, “the City would have been without
authority to demolish the house in the absence of a judicial
determination that the house was a nuisance in fact.”). Moreover,
even if the Texas courts lacked express statutory or
jurisprudential authority to issue warrants for the search or
seizure of property, undoubtedly they are endowed with such
authority by the Fourth Amendment, the State Constitution, and
their inherent judicial powers.
II. DUE PROCESS
The plaintiffs cross-appealed the district court’s ruling
against their Fifth Amendment claim. I dissent from the en banc
majority’s decision, affirming summary judgment in favor of the
City of Dallas on the due process claim for the same reasons that
I dissented from the panel’s decision. See Freeman, 186 F.3d at
612-14 (Dennis, dissenting).
53
A governmental seizure of a person’s property implicates two
explicit textual sources of constitutional protection, the Fourth
and Fifth Amendments. James Daniel Good Real Prop., 510 U.S. at
49-50; Soldal v. Cook County, 506 U.S. at 61, 70-71. Although the
decision in James Daniel Good Real Property was based upon the
procedural protections of the Fifth Amendment’s Due Process Clause,
the similarly worded procedural protections of the Fourteenth
Amendment’s Due Process Clause apply with equal force to states and
municipalities.23
23
The Supreme Court has held that the Fourteenth Amendment’s
Due Process Clause “legitimately operates to extend to the citizens
and residents of the States the same protection against arbitrary
state legislation, affecting life, liberty and property, as is
offered by the Fifth Amendment against similar legislation by
Congress.” Hibben v. Smith, 191 U.S. 310, 325 (1903). Of the
guarantees of the Fifth Amendment, only the grand jury clause has
been held not to be applicable to the states. 2 Ronald D. Rotunda
& John E. Nowak, Treatise on Constitutional Law § 14.2, at 347-48
(2d ed. 1992) (citing Hurtado v. California, 110 U.S. 516 (1884)).
The Fifth Amendment prohibitions of compulsory self-incrimination
and double jeopardy were made applicable to the states in Malloy v.
Hogan, 378 U.S. 1 (1964), and Benton v. Maryland, 395 U.S. 784
(1969), respectively. In addition, although the Fifth Amendment’s
just compensation provision has not “technically” been incorporated
against the states, “the Court has held that the fourteenth
amendment due process guarantee provides the same safeguard against
a state’s taking of property without just compensation.” 2 Rotunda
& Nowak, supra, § 14.2, at 350 (citing Chicago B. & Q. R. Co. v.
Chicago, 166 U.S. 226 (1897)). See also Hurtado v. California, 110
U.S. 516, 541 (1884) (Harlan, J., dissenting) (“[T]he 5th
[amendment] provided that ‘no person shall be deprived of life,
liberty or property, without due process of law.’ This language is
similar to that of the clause of the 14th amendment now under
examination. That similarity was not accidental, but evinces a
purpose to impose upon the States the same restrictions, in respect
of proceedings involving life, liberty and property, which had been
imposed upon the General Government.”).
54
The City does not, and could not, dispute that the seizure and
destruction of the plaintiffs’ real property deprived them of
property interests protected by the Fifth and Fourteenth
Amendments’ Due Process Clauses. The City argues, however, that a
hearing before a panel of the City’s own Urban Rehabilitation
Standards Board afforded the plaintiffs all the process they were
due before their property was seized and destroyed. I believe that
in the absence of an extraordinary situation, which did not exist
in the present case, the Due Process Clauses require that, before
a person is deprived of his real property by the government, he
must be given notice and an opportunity for a meaningful hearing
before a neutral magistrate, and that there must be a judicial
determination that the seizure is justified.
Where the government seizes property not to preserve evidence
of criminal wrongdoing but to assert ownership and control over the
property, its action must also comply with the procedural
protections of the Due Process Clauses of the Fifth and Fourteenth
Amendments. James Daniel Good Real Prop., 510 U.S. at 50. The
Supreme Court’s precedents establish the general rule that Due
Process requires that, absent an extraordinary situation, a party
cannot invoke the power of the state to seize a person’s property
without a prior judicial determination that the seizure is
justified. United States v. $8,850, 461 U.S. 555, 562 n.12 (1983)
(citing Boddie v. Connecticut, 401 U.S. 371, 378-379 (1971)); see
55
also North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601
(1975); Fuentes v. Shevin, 407 U.S. 67 (1972); Sniadach v. Family
Finance Corp., 395 U.S. 337 (1974); Mitchell v. W.T. Grant Co., 416
U.S. 600 (1974). Due Process also requires that individuals must
receive notice and an opportunity to be heard before the government
deprives them of property. James Daniel Good Real Prop., 510 U.S.
at 48 (citing $8,850, 461 U.S. at 562 n. 12; Fuentes, 407 U.S. at
82; Sniadach, 395 U.S. at 342 (Harlan, J., concurring); Mullane v.
Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)).
In James Daniel Good Real Property, the Supreme Court held
that, in the absence of exigent circumstances, the Due Process
Clause requires the government to afford notice and a meaningful
opportunity to be heard in an adversary hearing, to ensure the
requisite neutrality that must inform governmental decisionmaking,
before seizing real property subject to civil forfeiture. 510 U.S.
at 48, 53-56. The protection of an adversary hearing before a
neutral magistrate is of particular importance where the government
has a direct pecuniary interest in the outcome of the proceeding.
Id. at 55-56. In James Daniel Good Real Property, the Supreme
Court emphasized that “[t]he constitutional limitations we enforce
in this case apply to real property in general, not simply to
residences.” Id. at 61.
Accordingly, the Due Process requirements of notice, a
meaningful adversary hearing before a neutral magistrate, and a
56
judicial determination of justification must be afforded to a
person before his real property is seized and destroyed in order to
abate or rehabilitate an “urban nuisance.” In a case such as the
present one, there is need for equally rigorous adherence to the
principles of Due Process as in civil forfeitures of real property.
The City of Dallas has pecuniary interests in the outcome of such
proceedings, e.g., justification for federal and state urban
renewal grants; enhancement of the municipal tax base by promoting
the replacement of old buildings with new ones. The need for
safeguards against arbitrary, capricious, or unreasonable seizures
based on subjective standards may be even greater in “urban
nuisance” or “urban rehabilitation” cases. Moreover, a post-
seizure hearing cannot provide any remedy in such cases because the
destroyed property cannot be restored and the best evidence of
whether the seizure was justified will have been demolished also.
It is not necessary to accomplish the City’s legitimate goals of
urban rehabilitation that an owner whose real property the City
proposes to destroy be deprived of an opportunity for a meaningful
pre-seizure adversary hearing before a neutral and impartial judge
or magistrate. Requiring the City to postpone seizure and
destruction until after such a hearing and judicial determination
that the seizure is justified creates no significant administrative
burden. And any harm that results from delay is minimal in
57
comparison to the injury occasioned by the erroneous seizure and
destruction of real property. Id. at 59.
III. CONCLUSION
In summary, Camara and See require a judicial warrant
procedure for the administrative search or seizure of private
property, except in consensual or emergency situations. Soldal
does not overrule or modify Camara or See; it simply makes clear
that the Fourth Amendment protects property as well as privacy and
liberty. The Freeman Fourth Amendment majority correctly applied
Camara, See, and Soldal, and the other circuits’ decisions, except
for one, are not in conflict with that interpretation. Thus, I
would affirm the judgment against the City of Dallas.
Because the process used by the City of Dallas failed to meet
the requirements of due process as dictated by the Fifth Amendment,
I would also reverse the judgment for the City of Dallas and would
grant summary judgment in favor of the plaintiffs on this claim.
58