Due Process

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.


  • Barrie Segal

    This sounds like a story for volume 2 of my book “The Parking Ticket Awards: Crazy Councils, Meter Madness & Traffic Warden Hell”
    Barrie Segal
    Author of The Parking Ticket Awards: Crazy Councils, Meter Madness & Traffic Warden Hell

  • Jonathan Tung

    I feel sorry for her—because I’m currently going through something very similar!

    I’m trying to see if I can use this very case as a precedent to show that due process was violated because there was no note of notification made out to me at all. The police officer certainly had enough time to leave a note *after the towing already took place! So it was certainly not an inconvenience issue. Also, the police officer was aware that my car was parked directly in front of the residence under which the car was registered under PNO. This is a ridiculous set of circumstances and the citizen is the one who suffers most.

  • jason P

    First, I’m sorry that your car was taken and that other PNO’s are so indiscriminately taken. It is not compassionate. Especially for the lady who lives in a hotel. My truck was also parked in front of my family residence as a PNO and was towed around the 4th of July. I have another registered / insured truck I use and was planning on getting a repair on the PNO truck because it wouldn’t pass smog. The repair was actually a manufacturer defect. Anyway, no notice or due process. I had placed a card with my name, telephone number and contact information near the dashboard. The tow company now wants a huge amount of money, DMV fees are due, and you can imagine coming home to a missing truck on all days – the 4th of July. I believe this is an illegal taking and am looking at another recent case; miranda v. city of cornelius (2005) but may consider sacrificing the damn thing because I don’t want to deal with all of the complexity. The main argument by the police is that it hasn’t been registered for 6-months, but I didn’t think PNO ever expires even if it was on a public street?

  • ABC

    PNO means it will not be stored, parked or operated on any public highway or street. Follow the rules.

  • Dwayne

    Who writes these laws? This law is clearly created to benefit the local traffic agencies, tow companies, and the state. In California, we can try to change these laws with the initiative process. My car was towed today and I am very angry. This law is unjust because it preys mostly on people who didn’t have the money to pay the registration to begin with. Police and well to do people will say – “Well, you should not drive if you can’t afford the registration”. This is not possible in today’s world. If you have not broken any criminal laws, the right to drive should not be taken away by the state taking your property for failure to “pay a tax”. Furthermore, Police do not give each other tickets as a professional courtesy. If they don’t hold themselves accountable to the law, how can they enforce those same laws against the citizens? It literally takes food off the table of poor families and in some instances interferes with their ability to feed their families by getting to their job. They can do this because nobody represents these people (the poor). We should change this law. We can do it as the people through the initiative process. This is our government. We should take our government back from the bureaucrats and the special interests. This government at different levels has become oppressive. We are all workers in what is essentially a “share cropper state” if we can never really own anything of value without the “land owner (state)” taking our property from us if we do not pay a tax.