Car Towing and Due Process

Mary Clement is a responsible automobile owner. Though she hasn’t driven her 1981 Cadillac Eldorado Biarritz in seven years, she dutifully maintains the car’s “Planned Non-Operation” (PNO) status – an alternative to normal registration for cars that will not be driven on public streets nor parked in publicly accessible parking lots.

Clement kept her Caddy parked in the parking lot of her residence – a hotel – with the permission of the owner. A Glendale police officer decided to tow it because it was illegally parked in a publicly accessible lot. When Clement sued under 42 USC § 1983 for deprivation of her due process rights, the police officer successfully moved for summary judgment on qualified immunity grounds and the “good faith” defense.

Chief Judge Kozinski’s opinion in Clement v. J & E Service, Inc., case no. 05-56692 (9th Cir. Mar. 11, 2008), gets off to a good start for Clement:

Without so much as a letter, a knock on the door, a note on her windshield or even a parking ticket, the Glendale police towed and impounded Clement’s car. They left no clue to where it had gone. Only later did Clement discover that it had been towed for allegedly violating California vehicle registration laws.

The court indeed finds that due process was violated. The private right here isn’t huge, but all the officer had to do was look up Clement’s address from the PNO certificate, or he could have left a ticket in lieu of towing the vehicle.

Alas, Clement does not prevail, because the due process right to notice under these circumstances was not clearly established at the time the car was towed. And the tow company had a valid “good faith” defense since the tow appeared to be authorized by local ordinance and state law and the tow was done under close police supervision.

She must really love that car.

(UPDATE 3/12/08):  Decision of the Day notes that the decision comes from “a trio of relatively conservative judges.”

(UPDATE 6/5/19): I just got a client inquiry based on this blog post, which led me to take another look at it and, to my horror, I found someone had hacked my blog and inserted advertisements into the post! The advertising links are gone now, but it looks like I now have to look through my other 800+ blog posts for similar shenanigans.