Harrell et al v. The City Of New York , et al
Filing
52
OPINION & ORDER re: 30 MOTION for Summary Judgment. filed by Susan Calvo, Jacklyn Restrepo, Michael Harrell, John Peters Professional Limousines, Inc., Pedro Camacho, 15 MOTION to Dismiss, filed by David Yassky, Th e City Of New York, Meera Joshi, Raymond Scanlon, 25 MOTION to Dismiss Amended Complaint, filed by David Yassky, The City Of New York, Meera Joshi, Raymond Scanlon.Plaintiffs' motion for summary judgment as to liability to fi rst time violators, Docket Entry 30, is GRANTED. Defendants' cross-motion for summary judgment, Docket Entry 25, is GRANTED with respect to the claims against the individual defendants in their individual capacity, and the claim for punitive dam ages against the City. Count Five is DISMISSED pursuant to 28 U.S.C. § 1367(c). The motion is DENIED in all other respects. At oral argument, Plaintiffs stated that they were seeking injunctive relief, but that request was not included in their moving papers. The Amended Complaint also sought class certification. Given that the Court has determined that the City's policy of summarily seizing vehicles of alleged first-time violators violates the Fourth and Fourteenth Amendments, the par ties are ORDERED to submit a joint letter no later than October 9, 2015, indicating whether Plaintiffs intend to pursue injunctive relief and, if so, proposing a schedule for briefing their request. The letter should also address whether Plaintiffs s till wish to pursue class certification, and, if so, whether they require class discovery before briefing that request. The Clerk of Court is requested to terminate Docket Entries 15, 25 and 30. (As further set forth in this Order.) (Signed by Judge Valerie E. Caproni on 9/30/2015) (spo)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------------- X
MICHAEL HARRELL, SUSAN CALVO,
:
JOHN PETERS PROFFESSIONAL
:
LIMOUSINES, INC., JACKLYN RESTREPO,
:
and PETER CAMACHO, individually and on
:
behalf of all others similarly situated,
:
:
Plaintiffs,
:
:
-against:
:
CITY OF NEW YORK, MEERA JOSHI, DAVID :
YASSKY, and RAYMOND SCANLON,
:
:
Defendants. :
-------------------------------------------------------------- X
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 9/30/2015
14-CV-7246 (VEC)
OPINION & ORDER
VALERIE CAPRONI, United States District Judge:
New York City routinely seizes, without a warrant, automobiles that are suspected of
being unlawfully operated for hire in order to ensure that the vehicle owner pays any fine that
may subsequently be imposed. Plaintiffs, whose vehicles were seized, assert that the City’s
actions violated their Fourth Amendment right to be secure from unreasonable seizures and their
Fourteenth Amendment right not to be deprived of property without due process of law. The
Court agrees that the City’s procedure of seizing vehicles that are suspected of being used for
hire without proper licensing is unconstitutional under the Fourth and Fourteenth Amendments
as it applies to vehicle owners with no prior violations in the preceding 36 months. Accordingly,
Plaintiffs’ motion for summary judgment on liability as to New York City is GRANTED.
FACTS
Between September 2013 and July 2014, a vehicle belonging to each of the plaintiffs was
seized because a Taxi and Limousine Commission (“TLC”) inspector had probable cause to
believe the vehicle was being operated as an unlicensed vehicle for hire in violation of N.Y. City
Administrative Code § 19-506(b)(1).1 Pl. 56.1 Stmt. ¶ 11. Two of the plaintiffs – Pedro
Camacho and Susan Calvo – were operating the seized vehicles at the time of the seizure. Id. ¶¶
27, 31. Three of the plaintiffs – Michael Harrell, Jacklyn Restrepo, and John Peters Professional
Limousines, Inc. – owned vehicles that were seized while being operated by others. Id. ¶¶ 20,
37, 42. Some of the plaintiffs were ultimately found guilty of violating § 19-506(b)(1), others
were not.2
1
Section 19-506(b)(1) provides:
[A]ny person who shall permit another to operate or who shall knowingly operate . . . for hire any
vehicle as a . . . for-hire vehicle in the city, without first having obtained or knowing that another
has obtained a license for such vehicle . . . shall be guilty of a violation, and upon conviction in the
criminal court shall be punished by a fine of not less than one thousand dollars or more than two
thousand dollars or imprisonment for not more than sixty days, or both such fine and
imprisonment. This paragraph shall apply to the owner of such vehicle and, if different, to the
operator of such vehicle.
Section 19-506(e)(1) provides that “[i]n addition to or as an alternative to the [criminal] penalties provided” in § 19506(b)(1), “any person who shall violate [§ 19-506(b)(1)] shall, for the first violation, be liable for a civil penalty of
one thousand five hundred dollars, and for the second violation committed within a thirty six month period, for a
civil penalty of two thousand dollars.”
2
Restrepo’s vehicle was seized on or around September 9, 2013, when it was being driven by her boyfriend.
Pl. 56.1 Stmt. ¶ 41. She posted a $2000 bond to secure the release of her vehicle the same day and was ultimately
found not guilty of the violation. Id. ¶¶ 42-44. Her vehicle was seized a second time on July 23, 2014, also when
being driven by her boyfriend. Id. ¶ 45. She posted a pond and secured release of the vehicle the following day.
Curiously, she was found guilty of violating § 19-506 because she permitted her vehicle to be used for-hire, but the
driver was found not guilty of using the vehicle for hire. Id. ¶¶ 46-47.
A vehicle owned by Plaintiff John Peters Professional Limousines, Inc., was seized on December 5, 2013,
after the driver offered documentation that the trip was outside of TLC’s jurisdiction. Id. ¶¶ 37-38. John Peters
posted a cash bond to secure the release of the vehicle and was found not guilty. Id. ¶ 39. In its response to
Plaintiffs’ motion, the City submitted evidence indicating that John Peters had, however, pleaded guilty to violating
§ 19-506 on three occasions prior to the December 5 seizure. Selvin Reply Decl. ¶ 9; Dkt. 44. Plaintiffs did not
dispute this evidence.
Plaintiff Michael Harrell’s vehicle was seized on December 18, 2013, while it was driven by a friend. Pl.
56.1 Stmt. ¶¶ 20-21. Harrell was unable to appear at the hearing and a default judgment was entered against him;
his friend, the driver, pleaded guilty. Id. ¶¶ 22-23. Harrell moved to vacate the default judgment. By the time his
motion was granted and he was found not guilty, the TLC had sold his vehicle. Id. ¶¶ 24-26.
Plaintiff Pedro Camacho’s vehicle was seized at JFK Airport on January 9, 2014, when the TLC inspector
disbelieved his story that his passenger was his niece. Id. ¶ 31, 33-34. Camacho did not post a bond, and the TLC
withdrew the violation at his scheduled hearing. Id. ¶¶ 35-36.
Plaintiff Susan Calvo’s vehicle was seized at JFK Airport on June 4, 2014. Id. ¶ 27. She posted the $2000
bond to secure the release of her vehicle, but was told that no charges were pending against her when she appeared
at her scheduled hearing, apparently because of a glitch in TLC’s recordkeeping system. Id. ¶¶ 28-30. In its
2
If a police officer or designated TLC employee has “probable cause” to believe a
“straight tag vehicle”3 is being operated for hire, he or she may summarily seize the vehicle and
issue a summons to the driver and owner to appear before an administrative tribunal for a hearing
that will occur within 14 days. N.Y.C. Admin. Code § 19-506(h)(1);4 35 R.C.N.Y. §§ 6823(b)(2), (c)(2). After seizure, the vehicle will not be released until the hearing unless the owner
either pleads guilty to the violation and pays the fine or posts a bond equal to the maximum
penalty that could be assessed. N.Y.C. Admin. Code § 19-506(h)(1); 35 R.C.N.Y. § 6823(d)(2).5
The City Council enacted § 19-506(h)(1) in 1990 based on a finding that seizure of
vehicles was necessary to “compel compliance” with § 19-506(b)(1) because the “overwhelming
majority of summonses” had “resulted in unsatisfied default judgments,” making “more stringent
enforcement mechanisms” necessary. N.Y.C. Admin. Code § 19-506 Note L.L. 90/1989 § 1.6
response to Plaintiffs’ motion for summary judgment, the City submitted evidence indicating that Calvo had either
pleaded guilty or been found guilty of violating § 19-506(b)(1) three times before the June 4 seizure. Selvin Reply
Decl. ¶ 8. Plaintiffs did not dispute this evidence.
3
A “straight tag vehicle” is a vehicle that is not licensed for hire.
4
Section 19-506(h)(1) provides that “[a]ny officer or employee of the commission designated by the
chairperson of the commission and any police officer may seize any vehicle which he or she has probable cause to
believe is operated or offered to be operated without a vehicle license in violation of” § 19-506(b)(1), and
“thereafter” either the civil tribunal or criminal court “shall determine whether a vehicle seized pursuant to this
subdivision was operated or offered to be operated in violation of any such subdivision.”
5
The maximum civil penalty for first-time violators is $1500, and the maximum civil penalty for two or
more violations within a 36-month period is $2000. N.Y.C. Admin. Code § 19-506(e)(1).
6
The legislative history exhibits a particular concern with the character of drivers who allegedly operate
unlicensed for-hire vehicles. The then-chairman of the TLC Taxi Advisory Board Howard Fogel made clear that the
proposed bill was “directed against” such drivers, whom he called “hustlers, sharpshooters and lawbreakers” in his
remarks to the City Council on September 23, 1988. Selvin Reply Decl. Ex. H-2 at 11. He went on to opine that
“frequently,” the drivers were “unfit and unqualified to provide public transportation,” and that “many” had “serious
criminal records, many [were] drunkards, still others [were] drug addicts. If they did not possess these serious
character defects, in all likelihood they would be working legally and legitimately for medallion taxicab companies
or responsible private livery firms.” Id. The Court has no doubt that ensuring that livery drivers do not present a
danger to the people to whom they provide transportation is a legitimate public concern. The issue before the Court
is whether the City Council chose a lawful means to solve the problem identified somewhat hyperbolically by Mr.
Fogel.
3
In 2012, the City Council increased penalties for violations of § 19-506(b)(1)7 and
reduced the number of violations within a 36-month period that could trigger vehicle forfeiture
from three to two.8 See Selvin Reply Decl. Ex. I at 10; Def. Reply at 13 n.13. The City
conceded, however, that as a matter of policy TLC does not pursue criminal prosecutions for
stand-alone § 19-506(b)(1) violations, Transcript of Oral Argument (“Tr.”) at 17-18, and that,
regardless of the City Council’s grant of authority to forfeit cars of two-time violators, TLC has a
“uniform” policy to offer all first-, second-, and third-time violators the option to settle the claim
and pay a fine; it does not pursue forfeiture, Mulero Decl. ¶ 9-11.9 In short, § 19-506(b)(1) is
enforced, almost exclusively, through civil penalties.10
Plaintiffs brought suit under 42 U.S.C. § 1983 against the City and three individual
defendants, in their official and individual capacities: Meera Joshi and David Yassky, the current
and former chairmen of the TLC, Am. Compl. ¶¶ 16 and 17, and Raymond Scanlon, deputy
commissioner of the TLC with supervisory authority over enforcement, id. ¶ 18.11
7
The civil penalty increased from between $200 and $1500 per violation to a set penalty of $1500 for the
first violation and $2000 for two or more violations within a 36-month period. See Local Law 2012/32, A Local
Law to amend the administrative code of the city of New York, in relation to increasing the penalties for illegally
operating vehicles for hire, available at
http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=1017898&GUID=DB2508B8-4ADC-439C-9FFA4CECCA5D5A0D&Options=ID|Text|&Search=32. The range of criminal penalties increased from $400 to $1000 to
a range of $1000 to $2000. See id.
8
The violations attach to the owner, not the vehicle, but the vehicle involved in a subsequent violation is
subject to forfeiture. N.Y.C. Admin. Code § 19-506(h)(2).
9
Currently, TLC gives alleged violators the option to “plead guilty” to the violation and “settle” the claim
for $750 (first violation), $950 (second violation), and $1150 (third violation). Mulero Decl. ¶¶ 10, 12. When
Plaintiffs’ vehicles were seized, the standard settlement offers were $600 (first violation), $800 (second violation),
and $1000 (third violation). Id. ¶ 11. The standard settlement amounts increased in August 2014. Id. ¶ 12.
10
The City was aware of no criminal cases where § 19-506(b)(1) was prosecuted criminally as a stand-alone
offense. Tr. at 17.
11
Plaintiffs brought this suit as a putative class action consisting of two classes: a class consisting of all
plaintiffs who were owners of vehicles that were seized by TLC employees for first-time violations pursuant to § 19506(h)(1) (the “owner class”); and a subclass of plaintiffs who were not driving the vehicles at the time of seizure
(the “non-driver class”), who challenge the statute under the Fourteenth Amendment because it fails to provide
procedures sufficient to protect the interests of innocent owners. Plaintiffs have not moved for class certification. In
4
Plaintiffs challenge § 19-506(h)(1) pursuant to the Fourth and Fourteenth Amendments of
the United States Constitution and Article I, Section 12 of the New York State Constitution.12
Plaintiffs argue that the statute is invalid under the Fourth Amendment as applied to alleged firsttime violators because it authorizes TLC employees to seize and retain vehicles prior to any
adjudication of liability, without a warrant or a valid exception to the warrant requirement, and
without a claim of right to possess the vehicle. Am. Compl. ¶¶ 113, 115, 120. Plaintiffs argue
that the statute is invalid under the Due Process Clause of the Fourteenth Amendment as applied
to alleged first-time violators because it does not provide pre-seizure notice and opportunity to be
heard and allows (indeed, requires) the TLC to “hold the property hostage,” for purposes of
securing penalties for the as yet-to-be-adjudicated violations. Id. ¶¶ 127-30, 136-37.13
ANALYSIS
Plaintiffs moved for summary judgment on liability only as to their claims that N.Y. City
Administrative Code § 19-506(h)(1), the City’s codified policy of seizing vehicles suspected of
violating § 19-506(b)(1) without a warrant or pre-deprivation hearing, violates the Fourth and
Fourteenth Amendments to the U.S. Constitution and Article I, Section 12 of the New York
its response to Plaintiffs’ motion, the City submitted evidence creating a question of fact as to certain plaintiffs’
individual claims. See Selvin Reply Decl. ¶¶ 8-9. Because the motion does not adjudicate the individual claims,
those questions of fact are not material for this motion.
12
The City claimed, and the Plaintiffs did not dispute, that Plaintiffs’ claims under the New York State
Constitution are “duplicative” of their Fourth Amendment Claims. Def. Mem. at 1 n.1; see Pl. Mem. at 10-12.
“[T]he proscription against unlawful searches and seizures” in the Article I, Section 12 of the New York State
Constitution “conforms with that found in the [Fourth] Amendment.” People v. Johnson, 66 N.Y.2d 398, 406
(1985). Accordingly, to the extent the Fourth Amendment is violated by the City’s policy, the New York
Constitution is also. In that sense, the claims are duplicative. The New York Court of Appeals has indicated,
however, that remedies available for violations of the State constitution may be broader than those available under
42 U.S.C. § 1983. See Brown v. State of New York, 89 N.Y.2d 172, 193-94 (1996). Because Plaintiffs’ motion for
summary judgment did not address remedies, the distinction is not currently at issue.
13
Finally, the City requested that the Court decline to exercise jurisdiction over Plaintiffs’ claim that the TLC
has adopted a de facto rule that an owner is presumed to have consented to the unlawful use of his car in violation of
the City Administrative Procedure Act. See 28 U.S.C. § 1367(c). Because that claim raises a novel issue of City
law and is factually and legally distinct from the constitutional seizure and due process claims, pursuant to
28 U.S.C. § 1367(c), the Court declines to exercise supplemental jurisdiction over Count Five.
5
Constitution. Pl. Mem. at 1. The City cross-moved for summary judgment, arguing that a
warrant is not required to seize vehicles in public places based on probable cause to believe a
§ 19-506(b)(1) violation has occurred, or, alternatively, that the seizures fall within an exception
to the warrant requirement.14 Def. Reply at 1.
At the outset, it is useful to address what this case is not about. The relevant probable
cause in § 19-506(h)(1) is not probable cause to believe that the vehicle to be seized is subject to
civil forfeiture in conjunction with its driver’s arrest, and the cars are not retained by the
government pending forfeiture proceedings. Cf., generally, Krimstock v. Kelly, 306 F.3d 40 (2d
Cir. 2002) (Sotomayor, J.), cert. denied, 539 U.S. 969 (2003) (setting forth minimal process that
is due when the City seizes forfeitable vehicles operated by drivers who are arrested for driving
while intoxicated and wishes to maintain possession of the vehicles pending the outcome of the
criminal proceedings, establishing what has come to be known as a “Krimstock hearing,” see
Ford Motor Credit Co. v. NYC Police Dep’t, 503 F.3d 186, 188 (2d Cir. 2007)). Nor does this
case involve the seizure of a vehicle based upon probable cause to believe that it was used as an
instrumentality of crime and retained by the government to preserve evidence of the crime to be
used at trial. Cf. Ford Motor Credit Co., 503 F.3d at 188 (under Krimstock and its progeny, the
“City can justify the continued retention of a seized vehicle, either because it is likely to prevail
in the eventual forfeiture action or because it wishes to retain the vehicle as evidence against the
owner or driver”). By the City’s own admission, it does not forfeit vehicles belonging to first-,
second-, or third- time violators and does not pursue criminal charges for § 19-506(b)(1)
violations. Mulero Decl. ¶¶ 10-12; Tr. at 17. And even if it changed its policy to pursue
14
For either party to prevail, they must show that there is no genuine dispute as to any material fact and that
they are entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The Court may consider “the pleadings,
depositions, answers to interrogatories and admissions on file, together with any other firsthand information
including but not limited to affidavits.” Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir. 2011). With few exceptions
noted, there is no dispute as to any material fact for purposes of summary judgment. See Def. Reply at 1 n.1.
6
forfeiture against repeat offenders, forfeiture of vehicles belonging to first-time violators is not
authorized. See N.Y.C. Admin. Code § 19-506(h)(2).
The statute’s legislative purpose, structure, and the TLC’s enforcement policies make
clear the obvious: New York City summarily seizes private property, prior to any adjudication of
liability, to ensure that those who are guilty will pay the fine that may later be imposed.
A. Seizures Pursuant to § 19-506(h)(1) of Vehicles That Cannot Be Forfeited
Violate the Fourth Amendment
The Fourth Amendment of the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.
It is settled law that “[a] ‘seizure’ of property occurs when there is some meaningful
interference with an individual’s possessory interest in that property.” United States v. Jacobsen,
466 U.S. 109, 113 (1984). The “general rule” is that “absent an ‘extraordinary situation’ a party
cannot invoke the power of the state to seize a person’s property without a prior judicial
determination that the seizure is justified.” United States v. Eight Thousand Eight Hundred &
Fifty Dollars ($8,850) in U.S. Currency, 461 U.S. 555, 562 n.12 (1983). “It is familiar history
that indiscriminate searches and seizures conducted under the authority of ‘general warrants’
were the immediate evils that motivated the framing and adoption of the Fourth Amendment.”
Payton v. New York, 445 U.S. 573, 583 (1980). “[I]n the ‘ordinary case,’ seizures of personal
property are ‘unreasonable within the meaning of the Fourth Amendment,’ without more, ‘unless
. . . accomplished pursuant to a judicial warrant,’ issued by a neutral magistrate after a finding of
probable cause.” Illinois v. McArthur, 531 U.S. 326, 330 (2001) (quoting United States v. Place,
462 U.S. 696, 701 (1983)).
7
The “ultimate standard” of the Fourth Amendment is reasonableness; whether a particular
seizure violates the Fourth Amendment therefore typically depends on an analysis that reflects a
“careful balancing of governmental and private interests.” Soldal v. Cook Cnty., Ill., 506 U.S.
56, 71 (1992) (citations omitted). There are recognized exceptions under which warrantless
seizures will be considered “reasonable.” See McArthur, 531 U.S. at 330 (citing examples).15
To be valid, however, “[a] warrantless seizure must meet one of the recognized exceptions to the
[F]ourth [A]mendment’s warrant requirement.” United States v. Cosme, 796 F.3d 226, 235 (2d
Cir. 2015) (citation omitted).
The City argues that seizures pursuant to § 19-506(b)(1) do not violate the Fourth
Amendment because they are reasonable and fall within an exception to the warrant
requirement.16 Specifically, the City argues that the seizures are constitutional because the
vehicles are seized in public, Def. Mem. at 9-11, Def. Reply at 5; the vehicles are
instrumentalities of crime or are contraband, id.; the seizures are based on probable cause, Def.
15
In McArthur, the Supreme Court stated that “[w]hen faced with special law enforcement needs, diminished
expectations of privacy, minimal intrusions, or the like, the Court has found that certain general, or individual,
circumstances may render a warrantless search or seizure reasonable.” 531 U.S. at 330. It went on to list examples
of recognized exceptions, including: temporary restraints to preserve evidence until police could obtain a warrant
(“exigent circumstances”); search of an automobile supported by probable cause; suspicionless stops at drunk driver
checkpoints; temporary seizure of luggage based on reasonable suspicion; temporary detention of a suspect without
an arrest warrant to prevent flight and protect officers while executing a search warrant; and temporary stops and
limited searches for weapons based on reasonable suspicion. Id. (citations omitted).
16
The City argued that in order to succeed in their challenge, Plaintiffs must establish that “no set of
circumstances exist under which Admin Code § 19-506(h)(1) would be constitutional.” Def. Reply at 8-9. Contrary
to the City’s characterization, Plaintiffs challenge §19-506(h)(1) only as it applies to first-time violators whose
vehicles are not forfeitable under the enforcement scheme of §19-506(b)(1). See Am. Compl. ¶¶ 95, 112-13; Tr. at
43. Moreover, in City of Los Angeles v. Patel, 135 S. Ct. 2443, 2451 (2015), the Supreme Court clarified that when
“addressing a facial challenge to a statute authorizing warrantless” seizures, “the proper focus of the constitutional
inquiry is [the seizures] that the law actually authorizes, not those for which it is irrelevant.” Thus, if the vehicles
could constitutionally be seized under some other rationale (i.e., because they are contraband or forfeitable by
operation of a different statute), then the constitutional applications of the statute that may otherwise preclude facial
relief “are irrelevant . . . because they do not involve actual applications of the statute.” Id. The focus of Plaintiffs’
challenge, therefore, is the summary seizure of vehicles belonging to first-time violators under § 19-506(h)(1) that
are not otherwise subject to seizure. “[A] person subject to a statute authorizing searches without a warrant or
probable cause may bring an action seeking a declaration that the statute is unconstitutional and an injunction
barring its implementation.” Illinois v. Krull, 480 U.S. 340, 354 (1987).
8
Mem. at 8; exigent circumstances justify the seizures because the vehicles are inherently
dangerous, id.; and the seizures are justified to protect public safety, id. None of the City’s
arguments has merit.
The fact that the vehicles are seized in public is of no moment. “[S]eizures of property
are subject to Fourth Amendment scrutiny even though no search within the meaning of the
Amendment has taken place.” Soldal, 506 U.S. at 68. “[T]he absence of a privacy interest
notwithstanding, ‘[a] seizure of the article . . . would obviously invade the owner’s possessory
interest.’” Id. at 66 (quoting Horton v. California, 496 U.S. 128, 134 (1990) (first alteration
added)); see also id. at 68 (“[A]n officer who happens to come across an individual’s property in
a public area could seize it only if Fourth Amendment standards are satisfied – for example, if
the items are evidence of a crime or contraband.”).
While it is true that contraband and instrumentalities of crime are generally subject to
warrantless seizure, that justification for these seizures simply does not fly. First, the vehicles
are not contraband. See von Hofe v. United States, 492 F.3d 175, 184 (2d Cir. 2007) (“Pure
contraband – child pornography, counterfeit currency, and unregistered hand grenades, for
instance – are objects, ‘the possession of which, without more, constitutes a crime.’” (quoting
One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 699 (1965))). When contraband is
encountered by law enforcement, it is seized, and it is not returned to the owner – precisely
because it is contraband. Straight tag for-hire vehicles are simply not contraband. See One 1985
Plymouth Sedan, 380 U.S. at 699 (unlike narcotics, “[t]here is nothing even remotely criminal in
possessing an automobile. It is only the alleged use to which th[e] particular automobile was put
that subject[ed] [the owner] to its possible loss.”).17
17
This would be a different argument if the City passed legislation that categorized straight tag for-hire
vehicles as contraband. See Florida v. White, 526 U.S. 559, 565 (1999) (vehicle used to sell cocaine was contraband
9
Nor are the vehicles instrumentalities of crime as that term has been used by the Supreme
Court and Second Circuit. The City has cited no case and the Court has found none in which the
Supreme Court has dispensed with the warrant requirement to allow law enforcement to seize
property as an “instrumentality of crime” in connection with a violation that it never intends to
criminally prosecute. See von Hofe, 492 F.3d at 185 (noting that, when it comes to forfeiture of
instrumentalities or tools used in the commission of a criminal offense, “only after criminal
conviction may an in personam forfeiture occur”).
More important, the express purpose for the City’s seizures pursuant to § 19-506(h)(1) is
not to relieve wrong-doers of the instrumentalities of wrongdoing (after all, the vehicles are
returned as soon as an alleged wrongdoer posts a bond or pays a penalty). The purpose of the
statute is to ensure that vehicle owners pay their fines because the City Council believed that too
many summonses were resulting in unsatisfied default judgments. In short, the City’s effort to
fit this procedure into the precedent that permits the seizure of vehicles that are contraband or
instrumentalities of crime is an effort to fit a very square peg into a very round hole.
The City argues that the seizures are nonetheless reasonable because § 19-506(h)(1) only
permits seizures based on “probable cause.” It is true that seizures without a warrant can be
reasonable if law enforcement has probable cause to believe that the property is contraband,
evidence of a crime, or otherwise subject to forfeiture. See Florida v. White, 526 U.S. 559, 565
(1999); United States v. Gaskin, 364 F.3d 438, 458 (2d Cir. 2004) (“law enforcement officers
may seize forfeitable vehicles from public places without a warrant if they have probable cause
to believe that the vehicle is, in fact, subject to forfeiture” (citing White, 526 U.S. at 561)). But
under state statute). But see id. at 566-67 (Souter, J., concurring) (“The Fourth Amendment does not concede any
talismanic significance to use of the term ‘contraband’ whenever a legislature may resort to a novel forfeiture
sanction in the interest of law enforcement . . . .”). As the law stands, however, straight tag vehicles used for hire
are not “contraband.”
10
even in such cases, warrantless seizures of property “are reasonable only because there is
probable cause to associate the property with criminal activity” and “the item’s incriminating
character is ‘immediately apparent.’” Soldal, 506 U.S. at 69 (quoting Horton, 496 U.S. at 13637).
“Probable cause” is not a talismanic phrase that can be waved like a wand to justify the
seizure of any property without a warrant. When property is seized because there is probable
cause to believe that it is contraband or otherwise forfeitable, seizure is the first step in a process
to terminate a possessory interest in the property seized – the seizing officer has probable cause
to believe that the right abridged (ownership of the property) is a right that no longer exists. See
Krimstock, 306 F.3d at 49-51. When property is seized as evidence or instrumentality of a crime,
there is probable cause to believe that, until the termination of criminal proceedings, the
government has an interest in the property that is superior to the owner’s interest. Caplin &
Drysdale, Chartered v. United States, 491 U.S. 617, 627-28 (1989); Butler v. Castro, 896 F.2d
698, 700-03 (2d Cir. 1990) (it is unconstitutional to place the burden on arrestees to initiate
proceedings to recover “non-contraband items not needed as evidence” from the NYPD (citing
McClendon v. Rosetti, 460 F.2d 111 (2d Cir. 1972))). The “probable cause” in § 19-506(h)(1),
however, bears no nexus to the right that the seizure abridges. Because the statute does not
authorize forfeiture of first-time violators’ vehicles and by policy forfeiture is not sought even
with second- and third-time violators, probable cause to believe that the statute has been violated
means only that there is probable cause to believe that the owner may be liable for a fine. It does
not mean that there is probable cause to believe that the City has – even temporarily – a superior
claim to the vehicle than its owner.
The City next asserts that exigent circumstances demand immediate removal of straight
tag for-hire vehicles from the roadways because the vehicles pose a danger to society. The
11
legislative history suggests that the City Council was concerned that such vehicles are not
roadworthy and frequently are not adequately insured. See Selvin Reply Decl. Ex. H. While that
may be true, the seizures being challenged here do not ameliorate the City’s (perhaps legitimate)
concern inasmuch as the intent when seizing the vehicles is to return them to their owner upon
payment of the bond or penalty. The vehicle is returned whether it is roadworthy or not and
whether it is adequately insured or not. Thus, the seizures are ill-suited to achieve the goal of
removing dangerous vehicles from the streets of New York – however laudable that goal.18 Cf.
Krimstock, 306 F.3d at 66 (impounding vehicles pending the outcome of criminal proceedings is
“ill-suited to address the urgency” of keeping an individual from driving while intoxicated
because he would be free to drive intoxicated in any other vehicle). Even if exigent
circumstances did justify immediate seizure, when (as here) no other exception to the warrant
requirement applies, “the exigent circumstances exception only permits a seizure to continue for
as long as reasonably necessary to secure a warrant.” United States v. Cosme, 796 F.3d 226, 235
(2d Cir. 2015). Here, the City never obtains seizure warrants for the vehicles. In short, exigent
circumstances do not justify these seizures.
Finally, the City argues that seizure under § 19-506(h)(1) is a necessary tool to enforce
§ 19-506(b)(1). There is no question that regulating vehicles that operate for-hire is a legitimate
exercise of police power. But summary deprivation of property is not. The City has powerful,
legitimate tools at its disposal. It could subject these vehicles to forfeiture; it could suspend the
driver’s licenses of owners or operators of unlicensed vehicles for hire; it could impose
substantial late fees for owners who do not pay the fines that have legitimately been imposed.
18
The City’s concern with the character of drivers of the seized vehicles suffers from the same defect: seizing
the vehicles does nothing to prevent the drivers from committing future violations when the vehicle is returned,
except to the extent that the seizures serve to punish the driver prior to an adjudication of guilt.
12
What it cannot do, consistent with the Fourth Amendment, is summarily seize property to deter
future violations from an alleged violator19 and hold the property as leverage to ensure payment
of a penalty – if the violator is found guilty when the allegations against him are adjudicated.
B. Seizures Pursuant to § 19-506(h)(1) of Vehicles Belonging to Alleged First-Time
Violators Violate the Due Process Clause
When property is seized for the purpose of “assert[ing] ownership and control over the
property,” and not just to preserve evidence of wrongdoing, the seizure “implicates two ‘explicit
textual source[s] of constitutional protection’”: the Fourth Amendment protection against
unreasonable warrantless seizures and the Due Process Clause of the Fourteenth Amendment.
United States v. James Daniel Good Real Prop., 510 U.S. 43, 50, 52 (1993) (quoting Soldal, 506
U.S. at 70); see also Krimstock, 306 F.3d at 49-53. Here, the City seizes vehicles in order to
assert control over them as a means of ensuring payment of an as-yet-unimposed penalty. The
City argues that the TLC provides adequate process because it provides “prompt” hearings to
adjudicate the violations (the hearing occurs within fourteen days of the seizure), and that the
option to post a bond to secure the vehicles’ release ameliorates any temporary burden imposed
on the vehicle owners.20 Def. Mem. at 17; Tr. at 20-21.
The Due Process Clause of the Fourteenth Amendment provides: “No state shall . . .
deprive any person of . . . property without due process of law.” The “general rule” derived from
the Due Process Clause is “that individuals must receive notice and opportunity to be heard
19
At oral argument, the City represented that summarily seizing vehicles is intended to serve a deterrent
purpose – notwithstanding that, at the time of seizure, there has been no finding by a neutral and detached judicial
officer of liability. See Tr. at 19-20 (seizures further public safety interest even if vehicles are released upon posting
of bond because “the hope is that that [$2000 bond] deters you from future illegal conduct and that will stop the
illegal conduct”).
20
It is not clear why the City believes that being given the option of posting a $2000 bond or losing the use of
his or her car for up to two weeks imposes no burden on many New Yorkers.
13
before the Government deprives them of property.” James Daniel Good Real Prop., 510 U.S. at
48. Of course, it does not violate the Due Process Clause to immediately seize property when an
exception to the Fourth Amendment’s warrant requirement applies. Compare Calero-Toledo v.
Pearson Yacht Leasing Co., 510 U.S. 663, 676-80 (1974) (ex parte seizure did not offend due
process; “seizure for purposes of forfeiture is one of those ‘extraordinary situations’ that justify
postponing notice and opportunity for a hearing’” until after the seizure); with James Daniel
Good Real Prop., 510 U.S. at 56-59, 62 (ex parte seizure of real property violates due process
unless the government can establish exigent circumstances because real property cannot abscond
from the jurisdiction and less restrictive means are available). Because the Court concludes that
seizures of vehicles belonging to alleged first-time violators pursuant to § 19-506(h)(1) are
unconstitutional under the Fourth Amendment, it follows that the rule that postpones notice to
the owner and an opportunity to be heard until after seizure also violates the Due Process
Clause.21
Plaintiffs also challenge the adequacy of the post-seizure process. “Due process does not,
in all cases, require a hearing before the state interferes with a protected interest, so long as
‘some form of hearing is [provided] before an individual is finally deprived of [the] property
interest.” Nnebe v. Daus, 644 F.3d 147, 158 (2d Cir. 2011) (quoting Brody v. Village of Port
Chester, 434 F.3d 131, 134 (2d Cir. 2005)). “[D]ue process is flexible and calls for such
procedural protections as the particular situation demands.” Id. (citation omitted). In deciding
“whether the demands of the Due Process Clause are satisfied where the government seeks to
maintain possession of property before a final judgment is rendered,” courts consider the three
21
Cf. Connecticut v. Doehr, 501 U.S. 1, 15 (1991) (in a due process challenge to a prejudgment attachment
statute that included the right to expeditious post attachment hearing, noting that such a hearing “would not cure the
temporary deprivation that an earlier hearing might have prevented”).
14
factors set forth in Mathews v. Eldridge, 424 U.S. 319 (1976). Krimstock, 306 F.3d at 60. Those
factors are “(1) the private interest affected; (2) the risk of erroneous deprivation through the
procedures used and the value of other safeguards; and (3) the government’s interest,” including
administrative burden that additional procedural requirements would impose. Id.
The private interest affected here – possession of the vehicle – is significant. The Second
Circuit has recognized the importance of an individual’s interest in his or her motor vehicle,
inasmuch as they are used “as a mode of transportation and, for some, the means to earn a
livelihood.” Id. at 61. The fact that the deprivation is of finite duration (or “expedited” as the
City puts it) is of minimal importance. “[A] temporary, nonfinal deprivation of property is
nonetheless a ‘deprivation’ in the terms of the Fourteenth Amendment.” Fuentes v. Shevin, 407
U.S. 67, 85 (1972). The Due Process Clause “draws no bright lines around three-day, 10-day or
50-day deprivations of property.” Id. at 86. The length and severity of a deprivation is a factor
to weigh in determining the appropriate form of hearing, but it does not dispose of the right to a
meaningful opportunity to be heard. Id.; cf. Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974)
(state statute did not violate due process when writ was granted by a judge ex parte upon an
affirmation setting forth specific grounds for relief, and debtor was entitled to an immediate
hearing where writ would be dissolved if the creditor could not provide proof of its claim). Nor
does the option to post a bond to secure the vehicle’s release cure any constitutional imposition
on the private interests affected. “When officials . . . seize one piece of property from a person’s
possession and then agree to return it if he surrenders another, they deprive him of property
whether or not he has the funds, the knowledge, and the time needed to take advantage of the
recovery provision.” Fuentes, 407 U.S. at 85.
Turning to the next Mathews factor, the Court has concerns about the risk of erroneous
deprivations. The City argues that the TLC officer’s affirmation setting forth the basis for his or
15
her probable cause determination minimizes the risk of an erroneous deprivation at the time of
seizure and, by extension, pending adjudication by the TLC. Def. Mem. at 16-17. But even if
that probable cause determination were enough to justify the initial seizure (which it is not), the
Krimstock court expressly rejected a similar argument. There, the City argued that continued
retention of a forfeitable vehicle that had been seized when its operator was arrested for drunk
driving, pending a criminal proceeding, was justified by the probable cause determination that
was made when the vehicle’s operator was arrested. Krimstock, 306 F.3d at 52. The court
rejected that argument because “a warrantless arrest by itself does not constitute an adequate,
neutral ‘procedure’ for testing the City’s justification for continued . . . detention of a vehicle.”
Id. at 53. Although the timing of the hearing for a § 19-506(b)(1) violation is substantially more
prompt than the forfeiture proceedings considered in Krimstock, the seizing officer’s probable
cause determination does no more to mitigate the risk of erroneous deprivations.
The final Mathews factor is the government’s interest.22 In Krimstock, the court
acknowledged that the police department has an interest in preventing vehicles “from being sold
or destroyed before a court can render judgment in future forfeiture proceedings.” Krimstock,
306 F.3d at 62-64. But TLC does not forfeit vehicles of first-time offenders, and there is no
22
The City cites Mackey v. Montrym, 443 U.S. 1, 17 (1979), for the proposition that the Supreme Court “has
traditionally accorded the states great leeway in adopting summary procedures to protect public health and safety.”
Def. Reply at 12. The statute in Mackey provided that a driver arrested for drunk driving who refuses to submit to a
breathalyzer will have his driver’s license summarily suspended. Id. at 18. In weighing the government interest
under Mathews, the Court held that the state’s interest in public safety (deterring drunk driving and removing drunk
drivers from highways) was “substantially served by the summary suspension,” and that the “summary and
automatic character of the suspension sanction” was “critical” to attaining the public safety objectives. Id. at 18.
The Court specifically noted that “[d]runken drivers accounted for 283 of 884 traffic fatalities in Massachusetts
during 1975 alone.” Id. at 17 n.9. In contrast to the record before the Court in Mackey, the City did not come
forward with a single incident of harm (physical or monetary) caused by an unlicensed for-hire vehicle. Equating
the City’s so-called public safety interest in summarily seizing straight tag for-hire vehicles, which will be promptly
returned if a fine is paid, to the dangers posed by drunk drivers for purposes of Mathews balancing is unsupported by
the record.
16
legitimate government interest in seizing a vehicle because its owner might have violated a local
law.23
In sum, the City has cited no case, and the Court has found none, in which a federal court
has ever upheld the warrantless seizure of private property in order to ensure payment of a fine,
prior to any adjudication that the property owner committed any offense or that a fine is due.
Whatever the due process clause may mean in more complicated scenarios, surely it means the
government cannot summarily seize property because a fine might be imposed at some point in
the future by a neutral judicial officer.
C. Section 1983 Claims Against the City and Individual Defendants
The City moved to dismiss the Complaint for failure to state a claim for municipal
liability under Monell v. Department of Social Services of the City of New York, 436 U.S. 658,
(1978). For the reasons stated above, Plaintiffs have not only alleged that an official, codified
municipal policy of New York City caused Plaintiffs’ injuries, but there is no question of fact
that the policy and practices of implementing the policy violated (at least some of) the Plaintiffs’
rights guaranteed by the Fourth and Fourteenth Amendments. Accordingly, the City is liable
under Monell for whatever damages Plaintiffs who were first time violators can prove. See Lore
v. City of Syracuse, 670 F.3d 127, 168 (2d Cir. 2013).
The City also moved to dismiss the claims against the individual defendants because
they are entitled to either qualified or absolute immunity. “[T]o establish personal liability in a
§ 1983 action, it is enough to show that the official, acting under color of state law, caused the
deprivation of a federal right,” whereas an official-capacity action is, “in all respects other than
23
Cf. Doehr, 501 U.S. at 16 (discounting a private litigant’s interest in real property that was attached
pursuant to a prejudgment attachment statute because he had “no existing interest” in the real estate and the “only
interest in attaching the property was to ensure the availability of assets to satisfy his judgment if he prevailed on the
merits of his action”).
17
name, to be treated as a suit against the” City. Kentucky v. Graham, 473 U.S. 159, 166 (1985).
To prevail in an official-capacity action, the plaintiff must show that the government entity’s
“policy or custom . . . played a part in the violation of federal law.” Id. “When it comes to
defenses to liability, an official in a personal-capacity action may, depending on his position, be
able to assert personal immunity defenses;” in “an official-capacity action, these defenses are
unavailable.” Id. at 166-67. Because the Amended Complaint states a claim against the City
under Monell, it also states a claim against the individual defendants in their official capacities.
See id.; Rodriguez v. Winski, 973 F. Supp. 2d 411, 425-26 (S.D.N.Y. 2013).
In order to state a claim for personal liability under § 1983, however, the complaint must
allege facts that establish the defendants’ individual actions were proximate causes of the alleged
constitutional deprivations. See Raspardo v. Carlone, 770 F.3d 97, 116 (2d Cir. 2014); Grullon
v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013) (“It is well settled that, in order to
establish a defendant's individual liability in a suit brought under § 1983, a plaintiff must show,
inter alia, the defendant's personal involvement in the alleged constitutional deprivation.”).
“Personal involvement, within the meaning of this concept, includes not only direct participation
in the alleged violation but also gross negligence in the supervision of subordinates who
committed the wrongful acts and failure to take action upon receiving information that
constitutional violations are occurring.” Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 229
(2d Cir. 2004). Thus, an individual-capacity defendant is entitled to qualified immunity (and
dismissal of claims against him in his individual capacity) unless the complaint pleads facts that
plausibly allege his personal involvement in the constitutional violation and that his involvement
was a proximate cause of the plaintiff’s injury. See Grullon, 720 F.3d at 138. Plaintiffs
conceded at oral argument that they have alleged no facts that amount to personal involvement in
the alleged constitutional violations beyond the individual defendants’ enforcement of the law as
18
it was passed by City Council. Tr. at 36. That is not enough to survive a motion to dismiss made
by an individual-capacity defendant based on an assertion of qualified immunity.24
D. The Amended Complaint States a Claim for Punitive Damages Against the
Individual Defendants
The City moved to dismiss Plaintiffs’ claim for punitive damages because punitive
damages are not authorized under § 1983 in claims against the City. Def. Mem. at 25.
“Although a municipality itself is immune from a claim for punitive damages, [cit.], that
immunity does not extend to a municipal official sued in his official capacity.” New Windsor
Volunteer Ambulance Corps, Inc. v. Meyers, 442 F.3d 101, 122 (2d Cir. 2006) (citing Smith v.
Wade, 461 U.S. 30, 55-56 (1983); City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 258-68
(1981)); see also DiSorbo v. Hoy, 343 F.3d 172, 182 (2d Cir. 2003) (noting that the City’s
liability “is limited to . . . compensatory damages, as punitive damages may not be awarded
against a municipality under Monell”). As a result, the motion to dismiss the punitive damages
claim is GRANTED as to the City but DENIED with respect to the individual defendants in their
official capacities.
CONCLUSION
Plaintiffs’ motion for summary judgment as to liability to first time violators, Docket
Entry 30, is GRANTED. Defendants’ cross-motion for summary judgment, Docket Entry 25, is
GRANTED with respect to the claims against the individual defendants in their individual
24
The City also argued that the defendants are entitled to absolute immunity because they were exercising a
prosecutorial function. Def. Mem. at 23-24 (citing Butz v. Economou, 438 U.S. 478, 515 (1978)). At the same time,
the City argues that the Amended Complaint fails to allege that the individual defendants had any personal
involvement in issuing the summonses that set in motion the seizures and TLC adjudications. Id. at 22-23. The
City’s argument appears to be that the individual defendants would be entitled to absolute immunity for setting the
policy of prosecuting § 19-506(b)(1) violations, whether or not they had involvement in the individual decisions to
prosecute. See Cornejo v. Bell, 592 F.3d 121, 127-28 (2d Cir. 2010) (state officials initiating administrative
proceedings and civil litigation are entitled to absolute immunity from § 1983 claims arising out of the performance
of their duties, but actions that are the “functional equivalent of police officers’ making arrests in criminal cases” are
“a classic example of actions entitled to qualified, rather than absolute, immunity”). Because the Court finds that the
individual defendants are entitled to qualified immunity, it does not reach the issue of absolute immunity.
19
capacity, and the claim for punitive damages against the City. Count Five is DISMISSED
pursuant to 28 U.S.C. § 1367(c). The motion is DENIED in all other respects.
At oral argument, Plaintiffs stated that they were seeking injunctive relief, but that
request was not included in their moving papers. The Amended Complaint also sought class
certification. Given that the Court has determined that the City’s policy of summarily seizing
vehicles of alleged first-time violators violates the Fourth and Fourteenth Amendments, the
parties are ORDERED to submit a joint letter no later than October 9, 2015, indicating whether
Plaintiffs intend to pursue injunctive relief and, if so, proposing a schedule for briefing their
request. The letter should also address whether Plaintiffs still wish to pursue class certification,
and, if so, whether they require class discovery before briefing that request.
The Clerk of Court is requested to terminate Docket Entries 15, 25 and 30.
SO ORDERED.
____________________________
__
_________________________________
VALERIE CAPRONI
United States District Judge
Date: September 30, 2015
New York, New York
20
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