Towing and Procedural Due Process

Lone Star Security v. Los Angeles, No. 07-56521 (9th Cir. Oct. 21, 2009) (here) is something you don't often see - a fun procedural due process case.  In Lone Star Security, a habitual violator of Los Angeles' parking ordinances sued after having their vehicles repeatedly towed.  The plaintiff, Lone Star, would park large trailers on city streets.  These trailers were nothing more than advertising billboards.

Under California law, police may two a vehicle that has been parked in the same location for 72 consecutive hours.  Los Angeles tweaked the law, in order to close a loophole.

Under state law, Lone Star could seemingly park in one location for 71 hours; move the car down a block; park for 71 hours; move the car down the block; ad infinitum and ad nauseum (especially in the parking-strapped city of Los Angeles).  To close this loophole,  Los Angeles enacted an ordinance that allowed police may tow a vehicle stating: "a vehicle shall be deemed parked or left standing 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."

Since Los Angeles' ordinance was seemingly preempted under state law, Lone Star filed a Section 1983 lawsuit, alleging violations of procedural due process.  A unanimous three-judge panel of the Ninth Circuit Court of Appeals dismissed their suit.  Slip op. at 14748 ("Lone Star purports to raise two distinct due process claims in this action. We conclude that the district court should haverejected the invalid-ordinance claim and properly rejected the notice claim.")

"Lone Star contends that its due process rights were violatedsolely by virtue of the City’s acting under an ordinance that is invalid under state law. We conclude that this claimfails as a matter of law."  Id. at 14749.  Why?  The panel goes into some detail, but here is the rule: "[A] plaintiff doe snot make out a § 1983 claim by alleging only that the government enforced a preempted state law."  Id. at 14751.

The notice claim was much more interesting, and is the type of analysis I enjoyed reading when preparing for law-school exams.  Before towing a vehicle, first-time offenders get pre-deprivation notice.  After a while, the city stopped giving Lone Star Security pre-deprivation notices.  Applying the Mathews v. Eldridge balancing test, the panel held that Lone Star Security was not entitled to a pre-deprivation notice:

First, although “[t]he uninterrupted use of one’s vehicleis a significant and substantial private interest,” Scofield, 862F.2d at 762, Lone Star does not assert such an interest. See Clement, 518 F.3d at 1094 (concluding that “the owner’s normal interest in continued use of his vehicle — as a means ofgetting from place to place” — had “no force” for the seizure at issue because the plaintiff’s car had “just sat in the parking lot, unused”). Lone Star was not using its trailers for transportation, but as an advertising medium in residential neighborhoods.Such a use creates a lesser interest in the trailers thanhad they served as a means of transportation. In addition, because of Lone Star’s unique status as a commercial, chronic offender having general notice through repeated previous individual notices that its trailers are subject to towing, the additional costs and burdens that concerned us in Clement are not present here. Lone Star suffers no “anxiety” when it discovers one of its trailers has disappeared from its parking place. When a trailer disappears, Lone Star knows that it hasbeen towed. Nor are Lone Star’s costs of reacquiring possession of impounded trailers of concern. Lone Star, despite knowing its trailers are subject to towing without individualized notice, nonetheless continues to violate the ban on parking more than 72-hours. Were violating the ordinance unprofitable, we presume that Lone Star would stop violating it.
Slip op. 14754.  That analysis is exactly right.  Lone Star Security was not an ordinary motorist whose vehicles were towed.  Lone Star was a repeat player.  They knew the score.  They didn't require pre-deprivation notice.  All in all, a very interesting procedural due process opinion.


  George Wallace

4:10 PM


As the losing counsel on this case, I feel some obligation to defend my client, who really is not the scheming "player" the City and the 9th Circuit describe. The pre-impound notice issue is the interesting one here, as you say, and I confess I was a bit surprised when the District Court ruled in our favor on the other, admittedly shakier argument.

What the 9th Circuit omits, although it is in the record, is that Lone Star is perfectly aware of the 72-hour parking requirement and has a practice of moving its trailers around on an ongoing basis, to keep within the bounds of the law and to avoid being impounded for a 72-hour violation. The City impounds the trailers anyway, then provides no meaningful opportunity to contest whether the impound was permissible. (That issue was never reached below, because of the grant of summary judgment, and has been preserved on remand. There are also some serious problems with Lone Star being singled out for enforcement of an ordinance that is otherwise not applied to innumerable other vehicles parked for over 72 hours on any given day. Again, not an issue that was before the 9th Circuit but one that may still need to be taken on below.)

All told, I continue to believe that Lone Star is as entitled as any other vehicle owner to notice that the City believes, rightly or wrongly, that a particular trailer is in violation of the ordinance and subject to impound. A seizure of property is a seizure of property, and notice and an opportunity to correct the claimed violation is the least that anyone should expect, absent an emergency or other compelling exigent circumstance. If that notice were given here, the trailers would move from their points of rest, which is rather the point of the ordinance in the first place.

Altogether, while I agree with you that this is a very interesting procedural due process case, I must respectfully dissent from your description of the analysis as "clearly correct."

An excellent blog you have here, incidentally. I added it to my RSS feed the moment you announced its launch on Crime & Federalism (which, needless to say, I also follow). I will now step down from my soapbox.


8:09 PM

Hi George! You know...I saw your name on the case info, but wasn't sure if it was the same George Wallace from D&E. Wish I had e-mailed you.

Thanks for your perspective on the case.

I assumed (am I wrong?) that Lone Star just challenged the tows at the post-deprivation hearing. I had my car towed (wrongfully) once. After getting it from the impound yard, I was offered a post-deprivation hearing.

Since California law is preempted under state law, Lone Star just gets their their money back at the hearing. Is that a correct assumption?


8:50 PM

The great Lompoc, California, city police used to write my son "warning tickets" telling him if he didn't move his vehicle in 72 hours, it would be towed. He drove the vehicle to work every day, yet got tickets every day for two or three weeks. The 70 years old next door neighbor lady was so fascinated by the harassment that she intentionally didn't move her nonworking car for over 6 months just to see if she would also get the warning tickets. She never got one warning or a ticket.