Federal Judiciary

A Due Process Right Not To Be Towed

By Robert Loblaw

Clement v. City of Glendale, 05-56692 (9^th Cir., March 11, 2008)

Anyone who has ever had a run-in with the law over vehicle registration - and I?m sure there are plenty of you - will appreciate this decision from the Ninth Circuit. Plaintiff Mary Clement let her car registration expire and instead filed a certificate of Planned Non-Operation with the California DMV. A car that is certified as PNO may not be driven on public roads or parked in public lots. So when Officer Young of the Glendale police found Clement?s Eldorado Biarritz in a hotel parking lot, he had it towed and impounded. As it turns out, Clement was living in the hotel, and she had not driven the car in seven years.

After Clement eventually figured out what had happened to her car, she sued under § 1983, claiming that towing her car without notice violated due process. Clement pointed to an earlier decision in which the Ninth held that police must give notice before towing a supposedly abandoned car. The defendants argued that this case was distinguishable because abandonment is in the eyes of the beholder, while Clement was clearly violating the PNO law by parking in a public place.

Surprisingly, a trio of relatively conservative judges on the Ninth Circuit disagrees with the defendants? position. Writing for the Court, Judge Kozinski has some harsh words for police officers who would dare to remove an unregistered but otherwise legally parked car from a parking lot:

The officer had several options open to him in these circumstances. He could have gone to the front desk of the hotel, asked to see the owner of the Eldorado Biarritz and told her personally that she needed to register the car or move it. This is what one might have expected from a conscientious public servant confronted with a car parked at the owner?s dwelling. Short of that, the officer might have written a ticket and left it at the front desk of the hotel, with a verbal warning that the car had to be moved or registered?which the hotel clerk could have been expected to deliver with the ticket. Or, the officer could simply have written a ticket and left it on the windshield.

Because Officer Young chose to call a tow truck rather than to protect and serve, the Ninth concludes that he violated Clement?s due process rights. But Clement will have to be satisfied with this verbal lashing, as the panel ultimately affirms the dismissal of her claims on qualified immunity grounds. Of course, now that the Ninth has opened this nasty can of worms, you can bet that they’ll be seeing a lot more towing litigation.

Full post as published by Decision of the Day on March 11, 2008 (boomark / email).