(concurring and dissenting):
[ 24 First, I concur in the analysis in footnote 2 of the lead opinion relative to the accrual of Jones's conversion claim, but dissent with respect to the remainder of the analysis.
25 The lead opinion summarily disposes of Jones's conversion claim for "failure to state a legal claim" for conversion-a ground not argued to or ruled upon by the trial court or argued by either party to this court-a concern I expressed in Bailey v. Bayles, 2001 UT App 34,¶ 18, 18 P.3d 1129 (Davis, J., dissenting), aff'd, 2002 UT 58, 52 P.3d 1158. Even if it were appropriate to base our decision on an issue not addressed by either the parties or the trial court, I have found no authority for the proposition that a statute criminalizing possession of property is tantamount to depriving one of an interest therein for the purpose 'of pursuing a conversion claim.
26 The city argues that the firearms are "per se contraband." Many firearms are not inherently illegal to possess, and it is only Jones's "membership in a category of persons prohibited from possessing firearms" that criminalized Jones's possession of the firearms. Cooper v. City of Greenwood, 904 F.2d 302, 305 (5th Cir.1990); see also Serio v. Baltimore County, 115 F.Supp.2d 509, 515 n. 6 (D.Md.2000) (mem.) (concluding defendant's firearms were not contraband per se where defendant was a convicted felon without possessory rights in the firearms, but where the possession of firearms, standing alone, was not a crime); but see Bilida v. McCleod, 211 F.3d 166, 178 (1st Cir.2000) *995{concluding that a wild raccoon, which could not be lawfully possessed without a permit, was contraband per se in the hands of a permitless defendant).
127 The lead opinion then begins the remainder of its analysis by correctly observing that Jones initially failed to properly plead his § 1983 action, see 42 U.S.C.A. § 1983 (2003), and then approving the trial court's refusal to allow Jones to remedy the defect because "[pJresumably, [our presumption, not based on any evidence or law,] Jones could have easily discovered ... the names of individual officers involved in destroying the weapons"; and our similar unilateral determination that "Jones should have been aware of the 'custom or policy' legal requirement." What Jones could or could not have discovered and what Jones should or should not have been aware of involve factual determinations, inappropriate for summary judgment.
128 Finally, having ruled that Jones cannot pursue his § 1983 claim, we, again without notice to the parties, and notwithstanding Judge Iwasaki's order, deprive Jones of his due process claim because " § 1983 was available as a remedy." Jones has shown a due process property interest in the firearms' proceeds. This case is factually unique because Judge Iwasaki ordered that the firearms be turned over to a dealer and sold at market value, with the proceeds returned to Jones. The city deprived him of this right to the proceeds by destroying the weapons rather than returning them for sale.
1 29 A due process property interest arises from an independent legal source, see Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972), "such as a state or federal statute, a municipal charter or ordinance, or an implied or express contract." Carnes v. Parker, 922 F.2d 1506, 1509 (10th Cir.1991). Here, the judicial order, regardless of the unique facts surrounding it, is another example of an independent source carrying the force of law. Judge Iwasaki's order-similar to a statutory
entitlement-gave Jones " 'more than a unilateral expectation of [the proceeds],'" but rather a " legitimate claim of entitlement to [them]'" Patterson v. American Fork City, 2008 UT 7, 123, 67 P.3d 466 (quoting Roth, 408 U.S. at 577, 92 S.Ct. at 2709)1 This is especially true in light of the city's lack of any legal authority to destroy the firearms.2
1 30 In my view, under all of the facts and cireumstances of this case (not those based on our presumption or what we think Jones should have been aware of), Jones should have been allowed to amend his complaint and pursue his claims.
. The city does not challenge the legal validity of Judge Iwasaki's order.
. The trial court found, in a collateral matter, that the city had no legal authority to destroy the weapons, and the city does not contest this other than pointing to a statute, see Utah Code Ann. § 76-10-525 (1999), that only deals with weapons used as evidence in court.