F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 17 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JOHN S. WILLIAMSON and
NANCY L. WILLIAMSON,
Plaintiffs-Appellants,
No. 97-2038
v. (D.C. No. CIV-95-1394-JP)
(D. N.M.)
BERNALILLO COUNTY SHERIFF’S
DEPARTMENT; BERNALILLO
COUNTY; DUGGER’S TOWING; and
R. JONES, in his capacity as a Deputy
Sheriff of Bernalillo County, and
Individually,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Plaintiffs brought this action to redress alleged constitutional and state law
violations arising out of the impoundment of a truck by the Bernalillo County
Sheriff’s Department. They now appeal from an order dismissing the county and
the sheriff’s department as improper parties, granting summary judgment on the
constitutional claims asserted under 42 U.S.C. § 1983, and dismissing the lone
state claim pursuant to 28 U.S.C. § 1673(c). We affirm.
On October 21, 1995, two Bernalillo County sheriff’s deputies stopped a
truck in which plaintiffs John and Nancy Williamson were driver and passenger.
Mr. Williamson was unable to produce a driver’s license, registration, certificate
of insurance, or proof of ownership. 1 License and registration checks revealed
both were expired. The deputies cited Mr. Williamson for several violations and
impounded the truck. Thereafter, the wrecker refused to release the truck unless
plaintiffs paid towing and storage charges. Ultimately, Mr. Williamson was
found guilty of operating a vehicle without liability insurance, failing to exhibit a
valid driver’s license, and failing to exhibit a valid registration. Nevertheless, the
truck was eventually released, without condition, to plaintiffs.
1
Although--perhaps because--plaintiffs’ lawful possession of the truck has
not been in dispute, the identity of the truck’s owner is not clearly shown in the
record.
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In the meantime, plaintiffs commenced this action, alleging that defendants
had seized the truck without authorization, in violation of the Fourth Amendment,
and withheld it without requisite procedural protections, in violation of the Due
Process Clause of the Fourteenth Amendment. The district court rejected these
federal claims, holding that plaintiffs, particularly Mrs. Williamson, lacked
standing to assert them and/or that defendants had satisfied the controlling
constitutional standards. The court also noted that the county and sheriff’s office
were not entities subject to suit. Finally, with the federal claims gone, the court
declined to exercise supplemental jurisdiction over plaintiffs’ state replevin claim
against the wrecker.
I
Before reaching the constitutionality of the impoundment, we address two
broad, preliminary contentions advanced by defendants. First, they argue that our
analysis of the impoundment must proceed exclusively under the reasonableness
standard of the Fourth Amendment, which they assert predominates whenever the
government seizes private property. However, the Supreme Court has repeatedly
rejected such attempts to attribute primary, preemptive status to one of multiple
independent constitutional guarantees. See, e.g., United States v. James Daniel
Good Real Property, 510 U.S. 43, 49-50 (1993); Soldal v. Cook County, 506 U.S.
56, 70-71 (1992) (distinguishing Graham v. Connor, 490 U.S. 386 (1989), which
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assessed excessive force claim under standard of Fourth Amendment instead of
substantive due process because latter was not distinct constitutional command,
but only alternate, less specific source for same proscription). Here, the Fourth
Amendment determines whether the sheriff’s deputies were substantively
authorized to seize plaintiffs’ truck, while the Due Process Clause independently
prescribes plaintiffs’ attendant procedural rights. 2
Second, defendants contend plaintiffs lack standing to invoke either Fourth
Amendment or due process guarantees because they did not prove ownership of
the truck. However, possessory interests are protected by both the Fourth
Amendment, see Soldal, 506 U.S. at 61; see, e.g., Winters v. Board of County
Comm’rs, 4 F.3d 848, 853 (10th Cir. 1993), and the Due Process Clause, see
Fuentes v. Shevin, 407 U.S. 67, 86 (1972); see, e.g., Wolfenbarger v. Williams,
774 F.2d 358, 362 (10th Cir. 1985). 3 Indeed, when the claimed injury involves
loss of use--here, over five months without a vehicle allegedly necessary to a
2
This is not to deny that, depending on the context, adherence to Fourth
Amendment requirements may incidentally satisfy due process concerns as well,
particularly those relating to predeprivation procedural protections. See Sanders
v. City of San Diego, 93 F.3d 1423, 1428 (9th Cir. 1996).
3
We note that New Mexico property law, like its Oklahoma counterpart
considered in Wolfenbarger, 774 F.2d at 361, recognizes and protects possessory
interests, through, for example, causes of action for conversion, see Aragon v.
General Elec. Credit Corp., 557 P.2d 572, 574 (N.M. Ct. App. 1976), and
replevin, see Adams v. Heisen, 423 P.2d 414, 416 (N.M. 1967).
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business requiring transportation of heavy equipment--rather than loss of title,
possession is in a practical sense the truly burdened interest.
Further, defendants’ contention that Mrs. Williamson has special standing
problems because she was just a passenger, misconceives the operative interest
here. The passenger/driver distinction may be significant for privacy
expectations, as the search cases relied on by defendants indicate, but the seizure
claim pursued here turns on property, not privacy, interests:
[T]he Fourth Amendment protects two types of expectations, one
involving “searches,” the other “seizures.” A “search” occurs when
an expectation of privacy that society is prepared to consider
reasonable is infringed. A “seizure” of property occurs where there
is some meaningful interference with an individual’s possessory
interests in that property.
Soldal, 506 U.S. at 63 (quotation omitted) (rejecting Seventh Circuit’s view that
possessory interest in seized property is unprotected by Fourth Amendment where
privacy or liberty interest is not also at stake). Since Soldal clarified this point,
circuits have recognized that the lack of a privacy interest sufficient to challenge
a search does not undermine standing with respect to the seizure of property in
which one has a possessory interest. See, e.g., Lenz v. Winburn, 51 F.3d 1540,
1550 n.10 (11th Cir. 1995); Bonds v. Cox, 20 F.3d 697, 701-02 (6th Cir. 1994).
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We note in this regard that Mrs. Williamson’s property interest in the truck is, on
our record, apparently no less significant than her husband’s. 4
II
We turn, then, to the viability of plaintiffs’ constitutional claims on
summary judgment. On de novo consideration thereof, see Wolf v. Prudential Ins.
Co., 50 F.3d 793, 796 (10th Cir. 1995), we affirm summary judgment in favor of
defendants for the reasons that follow.
A
The framework for our Fourth Amendment analysis was set out in United
States v. Ibarra, 955 F.2d 1405 (10th Cir. 1992). There we identified two sources
of authority for the warrantless removal of stopped, parked, or abandoned
vehicles: specific state (or local) motor vehicle laws, and the general interest in
public safety recognized in South Dakota v. Opperman, 428 U.S. 364, 369 (1976)
(“The [inherent] authority of police to seize and remove from the streets vehicles
impeding traffic or threatening public safety and convenience is beyond
4
Even if possession of the truck were attributable only to Mr. Williamson as
driver, defendants have never suggested that his interest would have been exempt
from Mrs. Williamson’s community property rights. See generally Ruggles v.
Ruggles, 860 P.2d 182, 192 (N.M. 1993) (“[I]t is axiomatic that each spouse in a
marriage has a present, vested, one-half interest in the spouses’ community
property.”); Hodges v. Hodges, 678 P.2d 695, 697 (N.M. 1984) (“Property
acquired during marriage by either husband or wife is presumed to be community
property.”).
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question”) (plurality opinion). See Ibarra, 955 F.2d at 1408-10. Put simply, if
one of these sources applies, impoundment is reasonable, see, e.g., United States
v. Rios, 88 F.3d 867, 869-72 (10th Cir. 1996); if neither does, it is not, see, e.g.,
Ibarra, 955 F.2d at 1410.
On the present record, we cannot say with any confidence that a particular
statute or ordinance specifically authorized the impoundment of plaintiffs’ truck.
However, given that it was concededly left on a highway “only two lanes wide,
with no shoulder,” R. I. doc. 6, at 3 (First Amended Complaint), and thus “caused
[a] traffic impediment by [blocking] the middle of a road which had no place to
pull off of,” 5 Opening Br. for Appellant at 17 n.5, impoundment was justified, as
a matter of law, in the interest of safety under Opperman. Cf. United States v.
Griffin, 729 F.2d 475, 480 (7th Cir. 1984) (where occupants could not lawfully
drive vehicle off emergency lane of highway, impoundment was prudent exercise
of community caretaking function and therefore proper under Opperman).
5
Lacking registration and liability insurance, plaintiffs could not lawfully
have driven the truck away from the scene. See N.M. Stat. Ann. § 66-3-19(E);
§ 66-5-205(A), (B). Their objection that the deputies who stopped them for
improper registration were responsible for the disadvantageous location of the
truck is spurious. Those found violating traffic laws on a particular highway are
in no position to complain about the inconvenience of being stopped thereon.
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B
Circuit precedent also provides ample guidance regarding the dictates of
due process in the present context.
[Our] cases make it clear that vehicle impoundment and the
imposition of attendant penalty charges prior to any hearing may be
appropriate provided the aggrieved party is afforded adequate notice
of a post-deprivation hearing in which the validity of the
impoundment can be disputed, either directly or by way of a
challenge to the underlying violation, and, if successful, the party
may recover any fees or penalties assessed.
Summers v. Utah, 927 F.2d 1165, 1169 (10th Cir. 1991). Plaintiffs do not dispute
the availability of a timely post-deprivation hearing, but argue that the hearing
was inadequate for two reasons.
First, plaintiffs complain that the hearing, conducted by a municipal traffic
court, concerned only the traffic violations and, thus, was not an opportunity to
challenge the impoundment of the truck. However, as Summers makes clear, a
hearing to defend against the underlying violations is sufficient, provided the
validity of the impoundment is thereby, at least indirectly, put in issue. Given the
interdependence between the violations here--which, if (and only if) valid,
rendered the truck undrivable--and the resultant need for impoundment, the
hearing on the violations plainly satisfied the indirect-challenge component of
Summers’ due process test.
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The real thrust of plaintiffs’ position is in their related objection that,
however undercut theoretically the impoundment would have been by a successful
defense against the underlying citations, they could have obtained no relief
regarding the impoundment from the traffic court. Defendants, who have ignored
this remedial component of the Summers test, do not dispute the asserted
limitations of the traffic court proceeding in this regard. We therefore assume,
for the sake of argument, that the premise of plaintiffs’ objection is correct.
Nevertheless, we hold that the potential procedural deficiency they identify was
necessarily inoperative in their case and therefore cannot establish a cause of
action here.
Plaintiffs do not challenge, nor do we have reason to doubt, the procedural
sufficiency of the hearing on the merits of the traffic violations. As this aspect of
the proceeding concluded with a substantive determination adverse to plaintiffs,
the question of relief vis a vis the impoundment never came into play. In short,
whatever latent remedial deficiencies might potentially inhere in the process, it
was constitutional as applied to plaintiffs because it properly terminated before
any question of remedy could have been material to them. 6
6
Of course, a party actually denied due process has a claim for nominal
damages regardless of the substantive merit of the underlying dispute. See
Zinermon v. Burch, 494 U.S. 113, 126 n.11 (1990). Thus, such a violation is not
excused by showing, after the fact, that the party would not have prevailed in any
(continued...)
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III
Our holding that the federal claims asserted herein were properly resolved
on summary judgment deflates plaintiffs’ remaining appellate contentions. In the
absence of an anchoring federal cause of action, the district court properly
exercised its discretion in dismissing plaintiffs’ supplemental replevin claim. See
28 U.S.C. § 1367(c); see, e.g., Doe v. Bagan, 41 F.3d 571, 577 (10th Cir. 1994).
As that leaves no causes of action remaining in the case, plaintiffs’ objection to
the dismissal of the county and the sheriff department as improper parties is moot.
The judgment of the United States District Court for the District of New
Mexico is AFFIRMED. The mandate shall issue forthwith.
Entered for the Court
James E. Barrett
Senior Circuit Judge
6
(...continued)
event. Here, in contrast, our point is that plaintiffs received due process on the
merits and simply failed, in the course thereof, to establish any entitlement to the
contingent remedial process they assert would have been inadequate.
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