City Did Not Have To Give Advance Notice To Tow Illegally Parked Trailers Owned By Chronic Offender Of Parking Ordinance

In Lone Star Security & Video, Inc. v. City of Los Angeles, (— F.3d —-, C.A.9 (Cal.), July 10, 2009), the United States Court of Appeals for the Ninth Circuit considered whether a city violated the due process rights of a corporation when it towed some of the corporation’s vehicles without advance notice. The Court of Appeals held that due process did not require the city to provide advance notice to the corporation, who was a chronic offender of the parking ordinance at issue, before towing the vehicles.

Facts

Lone Star Security & Video, Inc. (“Lone Star”), sells home and business security systems. To market its business, Lone Star attached advertisements to mobile trailers and then parked them for extended periods of time on residential streets in the City of Los Angeles (“City”). City has an ordinance which prohibits “parking in an otherwise public spot ‘for more than 72 hours in the aggregate during any period of 73 consecutive hours.’” A vehicle is deemed to have been left standing or parked for “72 hours unless during that period [it] is either driven a minimum of one mile after leaving the location where it has been parked or left standing, or within that period, is removed from any highway, street or alley.”

Over the period of several years, officers from the Los Angeles Police Department (“LAPD”) and the Los Angeles Department of Transportation (“LADOT”) had towed and impounded 77 trailers that Lone Star had left parked longer than 72 hours in violation of the ordinance. Both departments have forms that they use to attach to a vehicle to notify an owner that a vehicle may be towed because it has been parked for more than 72 hours. City requires officers from LAPD and LADOT to attach a notice form to any vehicle that belongs to a first-time offender. The decision to attach one of these forms to the vehicle of a repeat offender is left to the discretion of the individual officer. Lone Star does not dispute that it received multiple notices for violations of the ordinance. In addition to 77 of its trailers being towed, Lone Star also received hundreds of citations for violating the ordinance.

Lone Star filed a lawsuit in California state court, which it later voluntarily dismissed. Lone Star then filed a lawsuit in federal court alleging that its due process rights were violated because (1) City failed to give it adequate notice before towing the vehicles, and (2) the ordinance was preempted by the California Vehicle Code. The federal district court granted summary judgment in favor of Lone Star on the preemption issue, but also held that City did not have to provide Lone Star notice each time it towed one of its vehicles.

Decision

Lone Star contended that City’s ordinance was preempted by the California Vehicle Code. The Court of Appeals found that the district court lacked subject matter jurisdiction over the preemption claim. The court noted that other federal circuit courts of appeal have held that there is no federal question where a plaintiff asserts a due process claim under 42 U.S.C. § 1983 on the ground that a municipal ordinance is invalid under state law. The court joined these other circuits in this conclusion and held “‘when an attack on the validity of a city ordinance is limited to the claim that the ordinance violates state law[,] . . . the result of error in the administration of state law, though injury may result, is not a matter of federal judicial cognizance under the due process clause of the fourteenth amendment.’” Federal courts cannot adjudicate claims that a state law preempts a municipal ordinance “simply because the plaintiff asserts that a duly enacted ordinance fails to provide constitutionally sufficient notice.”

The Court of Appeals further concluded that the district court properly rejected its notice claim on the merits. Lone Star asserted that City failed to provide adequate notice before towing Lone Star’s trailers. Although it was City’s policy to notify first-time offenders before towing their vehicles, City left it to the discretion of individual officers whether to provide such notice to repeat offenders. Lone Star claimed that City had to provide advance notice each time it towed a trailer. The court disagreed.

“Due process ‘require[s] that notice generally be given before the government may seize property.’” There are, however, exceptions to the general rule such as where there is an emergency, where “notice would defeat the entire point of the seizure,” or “when the interest at stake is small relative to the burden that giving notice would impose.” In order to determine if notice is required under the circumstances, a court must weigh the private interest of the individual or company versus the governmental interest.

Here, the court concluded City’s notice policy did not violate Lone Star’s due process rights. First, Lone Star was not using the trailers for transportation but as an advertising medium. Second, although there is a risk of erroneous towing of a first-time offender’s vehicle under the ordinance, this risk is considerably reduced for repeat offenders such as Lone Star. Third, the government has a valid interest in implementing parking regulations.

City’s policy of towing the vehicles of chronic offenders without prior notice advances its interest by removing vehicles that are illegally parked and by deterring recidivism. Loan Star was attempting to obtain free long-term parking on public streets for vehicles that contained advertisements. The court, concluded, that under the circumstances “due process did not require the City to provide advance notice to Lone Star, a chronic offender, before towing its trailers for violating the 72-hour rule.”

Questions

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Mona Ebrahimi | 916.321.4500