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.