Tillison v. Gregoire

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN TILLISON, dba West Coast 
Towing Services,
Plaintiff-Appellant,
v. No. 04-35539
CHRISTINE GREGOIRE, in her official
capacity as Governor of the State  D.C. No.
CV-03-05514-FDB
of Washington; Rob McKenna, in
OPINION
his official capacity as Attorney
General for the State of
Washington,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Washington
Franklin D. Burgess, District Judge, Presiding*
Submitted June 14, 2005**
Seattle, Washington
Filed September 19, 2005
Before: Harry Pregerson, Susan P. Graber, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Pregerson
*Pursuant to Fed. R. App. P. 43(c)(2), Christine Gregoire is substituted
for her predecessor, Gary Locke, as Governor of the State of Washington,
and Rob McKenna is substituted for his predecessor, Christine Gregoire,
as Attorney General for the State of Washington.
**This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
13415
13418 TILLISON v. GREGOIRE
COUNSEL
Todd J. Hilts, San Diego, California, for the plaintiff-
appellant.
Diane L. McDaniel, Assistant Attorney General, Olympia,
Washington, for the defendants-appellees.
OPINION
PREGERSON, Circuit Judge:
Appellant-Plaintiff John Tillison d/b/a West Coast Towing
Services (“Tillison”) challenges Revised Code of Washington
section 46.55.080(2), which restricts patrol and non-
consensual towing by: (1) requiring a towing company to
obtain written authorization from a private property owner
before towing a vehicle from the private property, or from a
public official before towing a vehicle from public property,
without the vehicle owner’s permission; (2) requiring the pri-
vate property owner or the public official be present for the
tow; and (3) prohibiting the towing company from serving as
an agent for the private property owner or the public official.
Tillison claims that Revised Code of Washington section
46.55.080(2) is preempted by the Federal Aviation Adminis-
tration Authorization Act of 1994 (“FAAAA”), Pub. L. No.
103-305, § 601(c), 108 Stat. 1569, 1606, 49 U.S.C. §§ 14501-
14505, which governs the prices, routes, or services of motor
TILLISON v. GREGOIRE 13419
carriers transporting property (including tow truck operators).1
Tillison was recently unsuccessful in a similar challenge of a
similar California law regulating patrol and non-consensual
towing. See Tillison v. City of San Diego, 406 F.3d 1126 (9th
Cir. 2005).
Tillison timely appealed the district court’s order granting
Washington State’s summary judgment motion and dismiss-
ing his cause of action. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
I. FACTS AND PROCEDURAL HISTORY
Tillison is a “registered tow truck operator” licensed by the
Washington State Department of Licensing. See Wash. Rev.
Code § 46.55.010 (1999) amended by 2005 Wash. Legis.
Serv. 88 (West) (“ ‘Registered tow truck operator’ or ‘opera-
tor’ means any person who engages in the impounding, trans-
porting, or storage of unauthorized vehicles or the disposal of
abandoned vehicles.”). If a vehicle in the State of Washington
is parked in violation of certain time restrictions, the vehicle
may be impounded by a registered tow truck opera-
tor at the direction of a law enforcement officer or
other public official with jurisdiction if the vehicle is
on public property, or at the direction of the property
owner or an agent if it is on private property. A law
enforcement officer may also direct the impound-
ment of a vehicle pursuant to a writ or court order.
Wash. Rev. Code § 46.55.080(1). Tillison conducts patrol and
1
FAAAA was amended by § 103 of the Interstate Commerce Commis-
sion Termination Act of 1995, Pub. L. No. 104-88, 109 Stat. 803, 899
(1995), and recodified at 49 U.S.C. §§ 14501-14505. As discussed below,
FAAAA was recently amended once again by § 4105 of the Safe,
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for
Users, H.R. 3, 109th Cong., 1st Session (2005) (enacted).
13420 TILLISON v. GREGOIRE
non-consensual towing of vehicles illegally parked in viola-
tion of Revised Code of Washington section 46.55.080(1).
Patrol and non-consensual towing includes removing and
impounding illegally parked vehicles on private property
under a general authorization from the private property owner
or impounding illegally parked vehicles on public property
under authorization from a public official. In essence, a tow
truck operator, like Tillison, acts as the agent for the private
property owner or a public official and has permission to
remove vehicles illegally parked on the private or public
property, without first obtaining a signed authorization from
the private property owner or the public official at the time
and place of the tow. This practice violates Revised Code of
Washington section 46.55.080(2) which requires that before
an illegally parked vehicle is towed,
[t]he person requesting a private impound or a law
enforcement officer or public official requesting a
public impound shall provide a signed authorization
for the impound at the time and place of the impound
to the registered tow truck operator before the opera-
tor may proceed with the impound. A registered tow
truck operator, employee, or his or her agent may not
serve as an agent of a property owner for the pur-
poses of signing an impound authorization or, inde-
pendent of the property owner, identify a vehicle for
impound.2
2
‘Impound’ means to take and hold a vehicle in legal custody. There are
two types of impounds — public and private.
(a) ‘Public impound’ means that the vehicle has been impounded
at the direction of a law enforcement officer or by a public offi-
cial having jurisdiction over the public property upon which the
vehicle was located.
(b) ‘Private impound’ means that the vehicle has been
impounded at the direction of a person having control or posses-
sion of the private property upon which the vehicle was located.
Wash. Rev. Code § 46.55.010(3).
TILLISON v. GREGOIRE 13421
Wash. Rev. Code § 46.55.080(2).
On September 22, 2003, Tillison sought declaratory relief
under 28 U.S.C. § 2201 in United States District Court for the
Western District of Washington. In his complaint, Tillison ini-
tially challenged Revised Code of Washington sections
46.55.080(2), 46.55.120(1)(e) and (2)(a). Tillison claimed
these three provisions were preempted by section 14501(c)(1)
of FAAAA, which provides that “a State [or] political subdi-
vision of a State . . . may not enact or enforce a law, regula-
tion, or other provision having the force and effect of law
related to a price, route, or service of any motor carrier . . .
with respect to the transportation of property.” 49 U.S.C.
§ 14501(c)(1). According to Tillison, section 14501(c)(1) of
FAAAA preempted Washington State’s regulation of tow
truck operators’ prices, routes, or services.
While Tillison’s suit against the State was underway, the
district court stayed the action, pending resolution of Indepen-
dent Towers of Washington v. Washington, 350 F.3d 925 (9th
Cir. 2003) (“ITOW”), by our court. ITOW was a class action
brought on behalf of all towing companies in Washington
against the State.
In the meantime, the State received numerous complaints
concerning Tillison’s towing of vehicles. Because of these
complaints, state and municipal law enforcement officers con-
ducted an investigation of Tillison’s towing practices. The
results of the investigations were submitted to the Washington
State Department of Licensing.
After our mandate issued in ITOW, the district court in the
instant case vacated its stay on February 26, 2004.3 On the
same day, the Department of Licensing served Tillison with
3
Although in ITOW we analyzed, inter alia, regulations related to “non-
consensual towing,” we did not directly address whether Revised Code of
Washington section 46.55.080(2) was preempted by FAAAA.
13422 TILLISON v. GREGOIRE
a “Statement of Charges” and a “Temporary Order to Cease
and Desist.” The Department of Licensing ordered Tillison to
stop violating Revised Code of Washington sections
46.55.035(1)(c) and 46.55.080(2). See Wash. Rev. Code
§ 46.55.035(1)(c) (prohibiting registered tow truck operators
from having a “financial, equitable, or ownership interest” in
a company which acts as an agent of a property owner for the
purpose of signing impound authorizations); Wash. Rev.
Code § 46.55.080(2) (requiring registered tow truck operators
to obtain written authorization from private property owners
or public officials before towing a vehicle from private or
public property).
Tillison moved the district court for a temporary restraining
order and/or preliminary injunction to enjoin the State from
further investigating his business and from enforcing Revised
Code of Washington sections 46.55.080(2), 46.55.120(1)(e)
and (2)(a). On March 5, 2004, the district court denied Tilli-
son’s motion for a temporary restraining order. Nearly a
month later, the court denied Tillison’s motion for a prelimi-
nary injunction. Tillison did not appeal.
Shortly thereafter, the State moved for summary judgment
against Tillison. According to the State, Revised Code of
Washington sections 46.55.080(2), 46.55.120(1)(e) and (2)(a)
were not preempted by FAAAA because the provisions: (1)
were enacted and enforced pursuant to the safety regulatory
authority of Washington State, (2) were not related to “route”
or “service,” or (3) were related to the price of non-
consensual towing. The district court agreed and granted sum-
mary judgment in favor of the State. The court entered final
judgment against Tillison on June 11, 2004.
In the current appeal, Tillison only challenges Revised
Code of Washington section 46.55.080(2) and has conceded
that sections 46.55.120(1)(e) and (2)(a) are not preempted by
FAAAA. Tillison now appeals the district court’s order grant-
ing summary judgment in favor of the State, and argues that
TILLISON v. GREGOIRE 13423
the district court erred in ruling that section 46.55.080(2) was
not preempted by FAAAA.
II. ANALYSIS
A. Standard of Review
We review a district court’s decision regarding federal pre-
emption de novo. See Californians for Safe & Competitive
Dump Truck Transp. v. Mendonca, 152 F.3d 1184, 1186 (9th
Cir. 1998); Alexander v. Glickman, 139 F.3d 733, 735 (9th
Cir. 1998). We also review the district court’s interpretation
and construction of FAAAA de novo. See AGG Enters. v.
Washington County, 281 F.3d 1324, 1327 (9th Cir. 2002).
B. Revised Code of Washington Section 46.55.080(2) Is
Not Preempted by FAAAA
[1] Preemption analysis begins with the “presumption that
Congress does not intend to supplant state law.” N.Y. State
Conference of Blue Cross & Blue Shield Plans v. Travelers
Ins. Co., 514 U.S. 645, 654 (1995). Although Congress
clearly intended FAAAA to preempt some state regulations of
motor carriers who transport property, the scope of the pre-
emption must be tempered by the “presumption against the
pre-emption of state police power regulations.” Medtronic,
Inc. v. Lohr, 518 U.S. 470, 485 (1996) (internal quotation
marks omitted).
[2] Under FAAAA, a state or local law is preempted if: (1)
the law is related to a price, route, or service of any motor car-
rier with respect to the transportation of property, and (2) the
law does not fall under one of FAAAA’s regulatory excep-
tions. See 49 U.S.C. § 14501(c).
[3] A recent change in the law explicitly provides that
States are permitted to regulate non-consensual towing of
vehicles illegally parked on private property. Specifically, on
13424 TILLISON v. GREGOIRE
August 10, 2005, two months after this case was submitted on
the briefs, the Safe, Accountable, Flexible, Efficient Trans-
portation Equity Act: A Legacy for Users (“SAFETEA-LU”),
was signed into law. See Pub. L. No. 109-59, 119 Stat. 1144
(2005) (enacted). In addition to funding $286.4 billion over
six years for highway, transit, bikeway, recreational, safety,
and research programs, the 1,752-page bill added another reg-
ulatory exception to section 14501(c) of FAAAA so that
FAAAA now explicitly permits States to regulate non-
consensual towing of vehicles parked on private property.4
The amendment provides:
Nothing in [section 14501(c) of FAAAA] shall be
construed to prevent a State from requiring that, in
the case of a motor vehicle to be towed from private
property without the consent of the owner or opera-
tor of the vehicle, the person towing the vehicle have
prior written authorization from the property owner
or lessee (or an employee or agent thereof) or that
such owner or lessee (or an employee or agent
thereof) be present at the time the vehicle is towed
from the property, or both.
4
SAFETEA-LU’s amendment to FAAAA is silent as to whether Con-
gress intended for the newly added regulatory exception to section
14501(c) of FAAAA to apply retroactively. Absent clear Congressional
intent, a presumption exists that a statute does not operate retroactively.
Retroactive application of a statute is improper if such application “would
impair rights a party possessed when [the party] acted, increase a party’s
liability for past conduct, or impose new duties with respect to transactions
already completed.” Landgraf v. USI Film Prods., 511 U.S. 244, 280
(1994). None of these considerations applies here. In this case,
SAFETEA-LU’s amendment to FAAAA does not impair any rights Tilli-
son possessed when he acted in the past to tow vehicles on private prop-
erty because under Washington law, he never had that right. Nor did the
provision increase Tillison’s liability for past conduct, or impose new
duties on Tillison. Thus, we conclude that SAFETEA-LU’s amendment to
FAAAA applies to this appeal retroactively.
TILLISON v. GREGOIRE 13425
SAFETEA-LU § 4105, 119 Stat. at 1717 (emphasis added).
Thus, for vehicles parked on private property, this new regu-
latory exception to section 14501(c) of FAAAA makes it
clear that Revised Code of Washington section 46.55.080(2)
is not preempted as to vehicles parked on private property.
Bear in mind that this new regulatory exception covers pri-
vate property and not public property. Thus, we must still
determine whether FAAAA preempts Washington State’s reg-
ulation of patrol and non-consensual towing of a vehicle on
public property. See Wash. Rev. Code § 46.55.080(2) (“[A]
law enforcement officer or public official requesting a public
impound shall provide a signed authorization for the impound
at the time and place of the impound to the registered tow
truck operator before the operator may proceed with the
impound.”). Even though Tillison engages in patrol and non-
consensual towing on private property, Tillison nonetheless
challenges Revised Code of Washington section 46.55.080(2)
in its entirety. His argument that section 46.55.080(2) is pre-
empted by FAAAA is directed to both private impounds con-
ducted at the request of private property owners and public
impounds conducted at the request of public officials. We
now turn to the question whether Washington State’s regula-
tion of patrol and non-consensual towing on public property
is preempted by FAAAA. As discussed below, we conclude
that such regulation is not preempted.
1. Revised Code of Washington Section 46.55.080(2)
Is Not “Related To” Prices, Routes or Services of
a Motor Carrier
For a state or local law to be preempted by section
14501(c) of FAAAA, that law must first be related to the
price, route, or service of a motor carrier that transports prop-
erty. “A state or local regulation is related to the price, route,
or service of a motor carrier if the regulation has more than
an indirect, remote, or tenuous effect on the motor carrier’s
prices, routes, or services.” Tocher v. City of Santa Ana, 219
13426 TILLISON v. GREGOIRE
F.3d 1040, 1047 (9th Cir. 2000), abrogated in part by City of
Columbus v. Ours Garage & Wrecker Serv., Inc., 536 U.S.
424 (2002) (“Ours Garage”).
As noted above, Revised Code of Washington section
46.55.080(2) requires a public official requesting a public
impound to provide a signed authorization for the impound to
a registered tow truck operator at the time and place of the
impound before the operator may proceed with the impound.
Section 46.55.080(2) also prohibits a registered tow truck
operator to serve as an agent of a public official for the pur-
poses of signing an impound authorization or, independent of
the public official, identify a vehicle for impound.
In his opening brief, Tillison concedes that “section
46.55.080(2) does not prohibit towing services expressly.”
But Tillison argues that by requiring express authorization for
each tow, the section effectively prohibits patrol towing ser-
vices. According to Tillison, the express authorization
requirement “increases the amount of time it takes to tow an
illegally parked car” and “closes off an entire market of con-
sumers who desire ‘patrol towing services.’ ” We disagree.
Overall, the restrictions do not close off the market for non-
consensual or patrol towing services.
[4] First, the restrictions do not directly regulate the prices
a tow truck operator like Tillison may charge. Even if section
46.55.080(2) did impact the prices operators charge for non-
consensual towing, the regulation is saved from preemption
by the exception in FAAAA which allows such regulation of
prices:
[Preemption by section 14501(c)(1) of FAAAA]
does not apply to the authority of a State . . . to enact
or enforce a law, regulation, or other provision relat-
ing to the price of for-hire motor vehicle transporta-
tion by a tow truck, if such transportation is
TILLISON v. GREGOIRE 13427
performed without the prior consent or authorization
of the owner or operator of the motor vehicle.
49 U.S.C. § 14501(c)(2)(C) (emphasis added).
[5] Next, Washington State’s restrictions do not hinder the
routes a tow truck operator may take. So long as a public offi-
cial authorizes a tow, a tow truck operator may take any route
to get to the public property or to an impound yard. Simply
put, the regulations merely require that a public official
explicitly authorize towing of an illegally parked vehicle on
public property.
[6] Finally, we must consider whether section 46.55.080(2)
relates to the “service of any motor carrier . . . with respect
to the transportation of property.” 49 U.S.C. § 14501(c)(1).
Although a closer call, we nonetheless find that prohibiting
tow truck operators from acting as agents for, or identifying
vehicles to tow on behalf of, public officials only tangentially
affects the service of the tow truck operators. At worst, sec-
tion 46.55.080(2) makes it inconvenient for the public offi-
cials to request a tow. But convenience of the public official
is not “related to” the services provided by a towing company
and should not compel preemption of Washington’s patrol
and non-consensual towing restrictions. Cf. Charas v. Trans
World Airlines, Inc., 160 F.3d 1259, 1266 (9th Cir. 1998) (en
banc) (“To interpret ‘service’ more broadly is to ignore the
context of its use; and, it effectively would result in the pre-
emption of virtually everything an airline does.”). Moreover,
Washington’s restriction on patrol and non-consensual towing
does not “frustrate[ ] the purpose of deregulation [of motor
carrier transportation of property] by acutely interfering with
the forces of competition.” Californians for Safe & Competi-
tive Dump Truck Transp., 152 F.3d at 1189.
[7] Accordingly, we hold that Revised Code of Washington
section 46.55.080(2) is not related to the price a towing com-
pany may charge or the route a towing company may take. In
13428 TILLISON v. GREGOIRE
addition, we hold that section 46.55.080(2) is not preempted
by FAAAA because it only has an “indirect, remote, or tenu-
ous effect” on the services a towing company may provide.
See id. at 1188.
2. Revised Code of Washington Section 46.55.080(2)
Is a Motor Vehicle Safety-Related Regulation
Even if we were to agree with Tillison that section
46.55.080(2) regulates tow truck operators’ services, we hold
that section 46.55.080(2) was enacted under the motor vehicle
safety-related regulatory authority of Washington State, falls
within the motor safety-related exception of FAAAA, and is
not preempted by FAAAA. Specifically, FAAAA’s motor
vehicle safety-related exception states that
[section 14501(c)(1) of FAAAA] shall not restrict
the safety regulatory authority of a State with respect
to motor vehicles, the authority of a State to impose
highway route controls or limitations based on the
size or weight of the motor vehicle or the hazardous
nature of the cargo, or the authority of a State to
regulate motor carriers with regard to minimum
amounts of financial responsibility relating to insur-
ance requirements and self-insurance authorization[.]
49 U.S.C. § 14501(c)(2)(A).
[8] Safety-related towing laws passed by States may fall
within the safety exception of FAAAA, so long as they are
“genuinely responsive to safety concerns.” Ours Garage, 536
U.S. at 442. “The focus of the safety exception to preemption
must be on the legislative intent and whether the legislature
was acting out of safety concerns.” Tillison, 406 F.3d at 1129.
Unlike other state and municipal enactments regulating patrol
and non-consensual towing, Washington’s statute does not
expressly declare a public safety purpose. For example, con-
TILLISON v. GREGOIRE 13429
cerning non-consensual towing, the California legislature
stated:
It is the intent of the Legislature in the adoption of
subdivision (l) to further the safety of the general
public by ensuring that a private property owner or
lessee has provided his or her authorization for the
removal of a vehicle from his or her property,
thereby promoting the safety of those persons
involved in ordering the removal of the vehicle as
well as those persons removing, towing, and storing
the vehicle.
Cal. Veh. Code § 22658(m)(2) (emphasis added). Similarly,
the Miami City Code expressly states that the City’s Commis-
sion “finds and determines that the unauthorized parking of
vehicles that cannot be removed constitutes a public nuisance
and a public emergency effecting the property, public safety
and welfare of the citizens and residents of the city.” Miami
Beach Code § 106-257 (emphasis added). Finally, according
to the Dallas City Council,
the proposed safety-related regulations for noncon-
sensual tows would promote the public safety of both
visitors and residents of the city of Dallas by contrib-
uting to a decrease in the potential for confrontation
and violence between vehicle owners and the per-
sons who tow their vehicles; a decrease in bodily
injury and property damage caused by faulty tow
truck vehicles and equipment or by incompetent,
negligent, and criminal actions of tow truck opera-
tors and drivers . . . .
City of Dallas Code ch. 48A, § 48A-13(a)(7)(A)(xiii) (empha-
sis added).
[9] Cases that have addressed California Vehicle Code sec-
tion 22658(l), Miami Beach Code section 106-257, and Dallas
13430 TILLISON v. GREGOIRE
Code section 48A-13(a)(7)(A)(xiii), have all held that the
restrictions on non-consensual towing were sufficiently
safety-related to fall within FAAAA’s exception to federal
preemption. See Cole v. City of Dallas, 314 F.3d 730, 735
(5th Cir. 2002) (per curiam) (“The disputed regulation, Sec-
tion 48A-13(a)(7)(A)(xiii), is a motor vehicle safety regula-
tion under 49 U.S.C. § 14501(c)(2)(A).”); Galactic Towing,
Inc. v. City of Miami Beach, 274 F. Supp. 2d 1315, 1323 (S.D.
Fla. 2002), aff’d, 341 F.3d 1249 (11th Cir. 2003) (“[T]he
Court concludes that those provisions relate to and promote
Miami Beach’s legitimate safety concerns, not its economic
concerns.”); People ex rel. Renne v. Servantes, 103 Cal. Rptr.
2d 870, 880 (Ct. App. 2001) (“In summary, we conclude that
when, as here, the state has delegated authority to local
authorities, the municipal regulations on safety issues fall
within the exception of the FAAA Act and are not preempt-
ed.” (citations omitted)); see also Tow Operators Working to
Protect Their Right to Operate on the Streets of Kansas City
v. City of Kansas City, 338 F.3d 873, 876 (8th Cir. 2003)
(“On this record, particularly given the presumption against
federal preemption of state police powers, the district court
properly accepted Kansas City’s undisputed, and facially
plausible, assertion of a genuine safety purpose and concluded
that the Ordinance is not preempted by § 14501(c)(1).” (cita-
tion omitted)). Although the legislative history of Revised
Code of Washington section 46.55.080(2) does not expressly
state a public safety purpose, the 1985, 1987, and 1989 Wash-
ington State Senate and House Reports concerning regulations
of tow truck operators emphasized that there was a range of
complaints and concerns voiced by the public that required a
thorough review of the existing statutes governing towing and
impoundment of motor vehicles. Furthermore, on March 19,
1985, the Washington House Committee on Transportation
held a hearing that made it clear that legislation regulating the
tow truck industry was to provide consumer protection with-
out unduly restricting the tow truck industry. Specifically, the
Committee Chairman stated:
It was decided by the [Legislative Transportation
Committee] that a thorough study of the entire
TILLISON v. GREGOIRE 13431
impounding process would be in order. That began
in 1983 — in July. We created what was called the
Towing Emphasis Team “TET” bringing the LTC,
the State Patrol, the Department of Licensing
[(“DOL”)] together to effect a study to prepare legis-
lation. The intent in preparing that legislation at that
time were to resolve the present private and public
impound situation, to provide consumer protection
— obviously, that is something we are all very con-
cerned with — and to establish minimum service and
equipment standards without restricting industry in
the business. Over the last two years, there has been
tremendous amount of effort in trying to come up
with a workable solution. Something that obviously
was not very easy . . . . The main point is a lot of
effort has been going into this bill on behalf of the
members of the legislature, the State Patrol, the
DOL, and the industry . . . trying to find something
that will be good for the people of the State of Wash-
ington.
Audio tape: State of Washington House Transportation Com-
mittee Hearing, Opening Statements of the Committee Chair-
man (Mar. 19, 1985) (emphasis added) (copy available at
United States Court of Appeals Library, Pasadena). In sum,
Revised Code of Washington section 46.55.080(2) was
adopted in 1989 after Washington State’s Legislative Trans-
portation Committee completed its 1983 study, after two
years of lengthy and multiple public hearings, and after the
Washington State Legislature received input from the public,
the law enforcement community, and the tow truck industry.
[10] Despite the fact that Washington’s legislature did not
expressly state a public safety purpose for enacting legislation
that regulated patrol and non-consensual towing, Revised
Code of Washington section 46.55.080(2) is practically iden-
tical in wording to other patrol and non-consensual towing
regulations held to be safety-related. For example, the Califor-
13432 TILLISON v. GREGOIRE
nia statute on patrol and non-consensual towing is similar to
Washington’s statute and provides, in relevant part:
A towing company shall not remove or commence
the removal of a vehicle from private property with-
out first obtaining written authorization from the
property owner or lessee, or an employee or agent
thereof, who shall be present at the time of removal.
General authorization to remove or commence
removal of a vehicle at the towing company’s discre-
tion shall not be delegated to a towing company or
its affiliates . . . .
Cal. Veh. Code § 22658(l)(1) (2004); see also Galactic Tow-
ing, 274 F. Supp. 2d at 1317-18 (discussing section 106-
268(a)(1) of the Miami Beach towing ordinance, which does
not allow tow truck operators to “[r]ecover, tow, remove or
store a vehicle except upon the express instruction and written
authorization demonstrating a signature of the property owner
or agent to the business enterprise requesting the tow or
removal”). As noted above, the language in the California,
Dallas, and Miami Beach regulations is similar to the Wash-
ington statute. And those ordinances were all held by courts
to be passed for the public’s safety. Thus, it is reasonable to
conclude that the Washington State Legislature had public
safety in mind when it passed Revised Code of Washington
section 46.55.080(2).
In fact, Tillison acknowledges in his opening brief that
“when a vehicle owner unexpectedly and involuntarily ha[s]
their vehicle towed[,] their safety might be put at risk.” In
addition, Tillison states that Washington’s prohibition of
patrol and non-consensual towing is similar to the California
statute at issue in our recent decision in Tocher. However, Til-
lison argues that because in Tocher our court concluded that
the California statute was preempted, we should hold that the
similar Washington statute is also preempted. See Tocher, 219
F.3d at 1052.
TILLISON v. GREGOIRE 13433
But we recently reconsidered our holding in Tocher for the
following reasons: (1) the Supreme Court’s decision in Ours
Garage broadly interpreted the safety exception to FAAAA
and abrogated the Tocher decision; (2) the California Court of
Appeals in Servantes, 103 Cal. Rptr. 2d at 877-78, rejected
Tocher and held that California’s section 22658(l) did fall
within FAAAA’s safety exception; and (3) the California leg-
islature, after Tocher was decided, amended California Vehi-
cle Code section 22658 to clearly state that section 22658(l)
was adopted for safety purposes. See Tillison, 406 F.3d at
1127 (“Recent developments, including the Supreme Court’s
providing a broader interpretation of the safety exception to
the FAAAA and the California legislature’s amending section
22658, persuade us to reconsider Tocher.”). Given these
developments that undercut the holding in Tocher, our court,
in Tillison, concluded that the California statute was safety-
related and, therefore, free from federal preemption. See id. at
1131 (“For the foregoing reasons, including material statutory
authority not available at the time of the district court deci-
sion, we conclude that the statute is not preempted; it is
safety-related and comes within the safety exception to fed-
eral preemption.”). Thus, our opinion in Tocher no longer
supports Tillison’s arguments that Revised Code of Washing-
ton section 46.55.080(2) is preempted by FAAAA.
Finally, Tillison argues that Washington’s Revised Code
section 46.55.080(2) is not a safety-related towing regulation
in light of the Washington State Supreme Court’s decision in
Crane Towing Inc. v. Gorton, 570 P.2d 428 (Wash. 1977).
Whether FAAAA’s safety-related exception applies here,
however, is a question of federal law, not state law. We need
not defer to a state entity’s characterization of a state law pur-
pose when we interpret federal law. Cf. Coeur D’Alene Tribe
of Idaho v. Hammond, 384 F.3d 674, 682-83 (9th Cir. 2004)
(rejecting the argument that “if the state legislative intent is
clear, we must without more defer to the state legislature’s
interpretation of its own statute, and the analysis of incidence
ends there”), cert. denied, 125 S. Ct. 1397 (2005). Nonethe-
13434 TILLISON v. GREGOIRE
less, the Washington State Supreme Court’s reasoning in
Crane is helpful to our inquiry in this case.
In Crane, the Washington Supreme Court upheld the con-
stitutionality of the predecessor to Revised Code of Washing-
ton chapter 46.55. See Crane, 570 P.2d at 430. The court
stated that the regulation of towing of vehicles from private
property “tends to promote the safety and welfare of the peo-
ple,” id. at 433, and held that legislation is considered safety-
related if it prevents involuntary tows and expedites recovery
of towed vehicles, see id. at 434 (“Legislation which tends to
assist members of the public from involuntarily losing the use
of their vehicles and which tends to expedite recovery of their
vehicles once they have been removed fairly and clearly pro-
motes the safety and welfare of the public.”). According to
Tillison, section 46.55.080(2) neither prevents involuntary
tows nor expedites recovery of towed vehicles and therefore
cannot be considered safety-related legislation under Crane.
[11] Contrary to Tillison’s arguments, section 46.55.080(2)
does prevent involuntary tows and towing mistakes, reduces
confrontations, and expedites vehicle recovery regardless
whether the vehicle is parked on private or public property.
First, section 46.55.080(2) prevents involuntary towing and
towing mistakes by ensuring that removal only occurs after
the tow truck operator receives proper written authorization
from a public official. This not only serves to protect vehicle
owners and the public at large from towing mistakes, it also
reduces false vehicle theft reports. See, e.g., Galactic Towing,
274 F. Supp. 2d at 1319 n.1 (stating that requiring proper
authorization for non-consensual tows (1) protects the vehicle
owner and the public from towing mistakes, which may lead
to dangerous confrontations; (2) protects the vehicle owner
from being stranded at a dangerous time and location; and (3)
discourages filing of false vehicle theft reports that waste law
enforcement’s limited resources). Second, requiring written
authorization from the public official at the time of towing
expedites vehicle recovery because the public official will
TILLISON v. GREGOIRE 13435
know of the tow and can inform the vehicle owner accord-
ingly. In addition, requiring a public official to complete a
Washington State Department of Licensing “Authorization to
Impound or Tow and Vehicle Inventory Form” provides spe-
cific information that could help expedite vehicle recovery.
For example, upon receipt of a copy of the authorization form,
the vehicle owner will not need to contact the police or waste
time searching for the missing vehicle. Also, any damage to
the vehicle is marked on the authorization form by the tow
truck operator or public official requesting the tow before the
vehicle is towed. This allows the towing company to more
quickly release the impounded vehicle without having to
prove to the vehicle owner that the vehicle was not damaged
during the tow. All in all, even though section 46.55.080(2)
does not explicitly state that it was enacted for safety pur-
poses, in light of the above discussion, we conclude that
Washington State’s regulation of patrol and non-consensual
towing on public property is not preempted by FAAAA
because that section falls under FAAAA’s safety-related
exception.
“[I]t must be kept in mind that a broad discretion is vested
in the legislature to determine what the public demands and
what measures are necessary to protect the public interest.”
Crane, 570 P.2d at 434. That is what the Washington State
Legislature did when it enacted laws that regulated patrol and
non-consensual towing.
III. CONCLUSION
The historic police powers of the States are not to be super-
seded by a Federal Act “unless that was the clear and manifest
purpose of Congress.” N.Y. State Conference of Blue Cross &
Blue Shield Plans, 514 U.S. at 655 (internal quotation marks
omitted). Accordingly, we hold that Revised Code of Wash-
ington section 46.55.080(2) is not preempted by FAAAA and
AFFIRM the district court’s orders granting the State’s
motion to dismiss and entering judgment against Tillison.
AFFIRMED.