Long v. Gill et al

Filing 80

ORDER: Defendants' Motion for Summary Judgment 48 is denied. Signed on October 3, 2013 by Judge Michael J. McShane. (cp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DONALD LONG,
Plaintiff,

Case No. 6:11-cv-06284-MC

v.

OPINION AND ORDER

GORDON GILL; DOUGLAS OSBORNE;
LANE COUNTY SHERIFF’S OFFICE; and
ROGER’S TOWING,
Defendants.
_____________________________
MCSHANE, Judge:
Plaintiff Donald Long alleges defendants violated his constitutional rights by impounding
his truck and then failing to provide a meaningful hearing to challenge the impound decision.
Defendants Gordon Gill, Douglas Osborne, and the Lane County Sheriff’s Office move for
summary judgment. For the reasons stated below, defendants’ motion (ECF No. 48) is DENIED.
BACKGROUND
While on patrol around noon on September 20, 2009, Lane County Deputy Sheriff
Gorgon Gill initiated a traffic stop on a car displaying expired tags. (Gill Decl. ¶¶ 1-5.) Plaintiff
Donald Long, the driver of the car, pulled into a gas station at the corner of Greenhill Road and
West 11th Avenue in Eugene. Upon running a records check, Deputy Gill discovered the truck’s
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license plate tags expired in July 2006. (Gill Decl. ¶ 7.) Through an Oregon DMV check, Deputy
Gill learned Long’s license had been suspended since August 2006. (Gill Decl. ¶ 12.) Deputy
Gill cited Long for Driving While Suspended (ORS 806.010), Driving Uninsured (ORS
811.175), and Expired Tags (ORS 803.540(1). Deputy Gill had the truck towed and impounded
pursuant to ORS 811.175 and ORS 809.720(1).
Prior to the tow, Long received permission from the assistant manager of the gas station
to park the truck at the station. (Long Decl. 1.) The assistant manager informed Deputy Gill that
Long was free to park at the station and that the station was private property. Over the objections
of Long and the assistant manager, Deputy Gill ordered the truck towed. (Long Decl. 1.)
Although the vehicle was legally parked, Deputy Gill never gave Long the opportunity to
arrange for the truck to be legally moved to another location. (Long Decl. 2.) Long states that
had he had been given the chance to legally remove the truck to another location, he could have
done so. (Long Decl. 2.) Long retrieved the truck from Roger’s Towing the next day. 1
Long requested a hearing to contest the validity of the tow and impound. Prior to the
hearing, Long twice requested discovery from defendants. (Long Decl. 2.) On October 21, 2009,
Lane County Deputy Sherriff Douglas Osborne conducted a hearing regarding the tow and
impound of Long’s truck. ORS 809.716(3) allows the impounding officer to appear in person or
by affidavit. Deputy Gill did neither. Instead, Deputy Gill submitted his “narrative” and the
citations to Deputy Osborne. At the hearing, Deputy Osborne refused Long’s requests to view
Deputy Gill’s report and read the report into the record. (Long Decl. 3.) Long informed Deputy
Osborne that if the arguments, alleged facts, and evidence were not disclosed, Long could not

1

Prior to oral argument, I granted Long’s motion for a stipulated judgment dismissing Roger’s Towing from this
action.

2 – OPINION AND ORDER

meaningfully defend himself or challenge the case against him. During a recess, Long went to
the records department and requested Deputy Gill’s report. Long’s request was refused. Deputy
Osborne upheld Deputy Gill’s decision to impound Long’s truck.
Long, proceeding pro se, filed this action alleging defendants violated his constitutional
rights by illegally seizing his property and then failing to provide a constitutionally adequate
hearing to challenge the decision to impound the truck.
STANDARDS
The court must grant summary judgment if there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). An issue is
“genuine” if a reasonable jury could return a verdict in favor of the non-moving party. Rivera v.
Phillip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir. 2005) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)). A fact is “material” if it could affect the outcome of the case. Id.
The court reviews evidence and draws inferences in the light most favorable to the non-moving
party. Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 988 (9th Cir. 2006) (quoting Hunt v.
Comartie, 526 U.S. 541, 552 (1999)). When the moving party has met its burden, the nonmoving party must present “specific facts showing that there is a genuine issue for trial.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (quoting Fed. R. Civ. P.
56(e)).
DISCUSSION
1. The Seizure
The impoundment of a vehicle by law enforcement constitutes a seizure under the Fourth
Amendment. Miranda v. City of Cornelius, 429 F.3d 858, 862 (9th Cir. 2005). Subject to certain
exceptions, a warrantless seizure is per se unreasonable under the Fourth Amendment. Id. The
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question presented here is whether the community caretaking doctrine is a valid exception under
the specific facts of the warrantless seizure at issue. As explained by the Supreme Court:
To permit the uninterrupted flow of traffic and in some circumstances to preserve
evidence, disabled or damaged vehicles will often be removed from the highways
or streets at the behest of police engaged solely in caretaking and traffic-control
activities. Police will also frequently remove and impound automobiles which
violate parking ordinances and which thereby jeopardize both the public safety
and the efficient movement of vehicular traffic. The authority of police to seize
and remove from the streets vehicles impeding traffic or threatening public safety
and convenience is beyond challenge.
South Dakota v. Opperman, 428 U.S. 364, 368-69 (1975) (internal footnote omitted).
There is no dispute that at the time Deputy Gill pulled Long over, Long’s truck was not
registered and Long lacked a valid license and insurance. However, those facts alone do not
automatically justify Deputy Gill’s decision to impound Long’s truck. Miranda, 429 F.3d at 865
(the question is not whether state law authorized the impoundment, but whether or not the
seizure was reasonable under the Fourth Amendment) (internal citation omitted). Additionally,
impounding Long’s truck solely as a means to deter Long from subsequently driving without a
license, insurance, or registration is, on its own, unreasonable under the community caretaker
doctrine. See id. at 866 (“The need to deter a driver’s unlawful conduct is by itself insufficient to
justify a tow under the ‘caretaker’ rationale.”). Rather, in order to fall under the community
caretaker exception, Deputy Gill must have reasonably believed Long’s truck jeopardized public
safety or the efficient movement of traffic. Id. at 864 (quoting Opperman, 428 U.S. at 368-69).
The inquiry is fact specific, and includes a determination of whether the vehicle was subject to
theft or vandalism. Id. (internal citations omitted).
Long argues that because the truck was parked in a private gas station with the
permission of the station’s manager, Deputy Gill’s decision to impound the truck was not
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reasonable. Long submitted declarations from two friends who own a flatbed trailer capable of
hauling Long’s truck. (ECF No. 62-63.) Benjamin Fisher states, “If I had a chance to do so, I
would have come and retrieved the pickup from the Shell gas station near West 11th Ave. and
Greenhill Rd., Eugene. Also I have space and was willing to store the pickup on my private
property. There was no need to call a tow truck company to remove the pickup.” (Benjamin
Fisher Decl., 1.) Carol Fisher submitted a similar declaration. As noted, Long, accompanied by
the Fishers, retrieved the truck from Roger’s Towing the day after Deputy Gill ordered the truck
impounded.
There is no dispute that as Long parked the truck on a private lot with the permission of
the landowner, the truck was neither impeding traffic nor creating a hazard on a public right of
way. Therefore, in order for the community caretaking exception to apply, Deputy Gill must
have reasonably believed the impoundment was necessary to protect the vehicle from theft or
vandalism. 2
Long had a suspended license and lacked insurance. The car was not registered. Those
facts, knows to Deputy Gill at the time he ordered the truck impounded, are relevant because
they informed Deputy Gill that Long could not legally move the truck from the gas station. See
Miranda, 429 F.3d at 864 (driver’s citations relevant “insofar as it affects the driver’s ability to
remove the vehicle from a location at which it jeopardizes the public safety or is at risk of loss.”).
The Fishers, however, who lived two miles from the gas station, were willing and able to legally
move Long’s truck to a safe location. Long states that at the time of the tow, he knew the Fishers
were home and that “If I had been given a chance, I could have had my pickup legally removed

2

I note nothing in the record indicates Deputy Gill ever considered Long’s vehicle at risk of theft
or vandalism.
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and legally stored.” (Long Decl., 2.) Viewing the evidence in the light most favorable to Long, I
assume the Fishers could have arrived at the gas station in a matter of minutes. The
impoundment occurred at noon on a sunny day. The gas station was open for business, and
presumably would remain open for at least several hours. Given these facts, there is a genuine
issue of material fact as to whether Long’s truck was subject to theft or vandalism.
Critical to my conclusion, Long had permission to park at the gas station. Viewed in the
light most favorable to Long, the facts here, where Long was legally parked with the permission
of the property owner (at noon on a sunny day) resemble those in cases where courts found
impoundments fell outside of the community caretaker exception. See United States v. Squires,
456 U.S. F.2d 967, 970 (2nd Cir. 1972) (no reasonable basis behind officer’s decision to tow
vehicle from lot behind driver’s apartment complex, which was were vehicle was supposed to be
parked, in order to protect vehicle); see also Miranda 429 F.3d at 865-66 (no reasonable basis to
impound vehicle after unlicensed driver parked registered vehicle in licensed driver’s private
driveway). While “[t]he violation of a traffic regulation justifies impoundment of a vehicle if the
driver is unable to remove the vehicle from a public location without continuing its illegal
operation,” Miranda 429 F.3d at 865, the record indicates Long had the means to legally
transport the vehicle to a safe location and was legally parked in a relatively safe place.
Although the Fourth Amendment does not require an officer to wait while an individual
makes arrangements to have a vehicle legally transported to a safe area, Long states Deputy Gill
never afforded him the opportunity to arrange for moving the vehicle. Although the gas station
was “an exposed or public location,” Miranda, 429 F.3d at 865 (internal citations omitted), Long
had permission to legally park at the gas station. One presumes that for several hours following
the tow, Long’s vehicle was at least as safe as any other vehicle legally parked on private
6 – OPINION AND ORDER

property in Eugene at noon on a sunny day. Viewing the facts in the light most favorable to
Long, there is a genuine issue of material fact as to whether the decision to impound the car to
protect it from theft or vandalism was reasonable. Under these circumstances, defendants’
motion for summary judgment on Long’s unreasonable seizure claim is DENIED.
2. The Hearing
The Due Process Clause of the Fifth Amendment to the United States Constitution,
applicable to the states through the Fourteenth Amendment, provides that no person may be
deprived of life, liberty, or property without due process of law. “The fundamental requirement
of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.”
Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (internal citations and quotations omitted). There
is no dispute that Long was provided a hearing to challenge the validity of the impoundment.
The parties disagree as to whether the hearing was sufficiently “meaningful” to satisfy Long’s
Constitutional rights.
Due process rights are flexible, depending largely on the specific factual circumstances
along with a weighing of the governmental and private interests involved. Mathews, 424 U.S. at
334 (internal citations omitted); Mullane v. Central Hannover Bank & Trust Co., 339 U.S. 306,
313 (1950) (due process tolerates variances in procedure “appropriate to the nature of the case.”).
Each setting invites its own assessment under a Mathews analysis and the only general statement
that can be made is that persons holding interests protected by the due process clause are entitled
to “some kind of hearing.” This hearing does not include the full range of rights and protections
available to litigants in judicial proceedings. Henry J. Friendly, Some Kind of Hearing, 123 U.
PA. L. Rev. 1267, 1277-78 (1975).

7 – OPINION AND ORDER

Courts look at three factors when considering the sufficiency of the administrative
procedures provided: “First, the private interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest through the procedures used, and the
probable value, if any, of additional or substitute procedural safeguards; and finally, the
Government’s interest, including the function involved and the fiscal and administrative burdens
that the additional or substitute procedural requirement would entail.” Mathews, 424 U.S at 335.
The hearing at issue was an administrative hearing to determine the validity of the
impoundment. Under Oregon law, the impounding agency must demonstrate, by a
preponderance of evidence, that the impoundment was lawful. See ORS 809.716(3). Long states:
I had a rather long discussion with Deputy Osborne. I told him I could not
meaningfully defend or answer if the opposing party’s case was not presented and
the evidence, alleged facts and arguments were withheld and not disclosed.
Deputy Osborne disagreed stating that he had read the “report” before the hearing
and felt no need to disclose it.
The opposing party’s case was not presented at the hearing to contest the validity
of the tow.
I had no way to know the alleged facts or arguments of the opposing party’s case.
I had no way to answer, challenge or defend because of the above.
(Long Decl., 3.)
Under a Mathews analysis, the Court would be hard pressed to require the County to
provide in an impoundment hearing the procedural safeguards of cross examination, live
testimony, a public record, and findings of fact prepared by a tribunal. There are, however,
fundamental goals and requirements that are core to a hearing designed to assure a meaningful
opportunity to be heard. At a minimum these requirements include an unbiased tribunal, an
opportunity to be heard and present evidence, the right to know the opposing evidence upon
8 – OPINION AND ORDER

which the tribunal bases his or her decision, and the right to meaningfully respond to the
opposing evidence.
In the instant case, the County has failed to provide the minimum due process
requirements of an administrative hearing. The record reflects a hearing that amounted to no
more than an opportunity to argue with a co-worker of the impounding officer. The “testimony”
of Deputy Gill did not meet the statutory requirement that Deputy Gill appear in person or
through an affidavit. Instead, Deputy Osborne received an unsigned and undated “narrative”
from Deputy Gill that Deputy Osborne refused to show to Long. Even upon requesting a recess,
Long was unable to obtain the narrative from the sheriff’s record department across the hall from
the hearing. It appears from the record that Deputy Osborne read sections of the narrative to
Long and asked Long if he agreed with the statements of Deputy Gill in a style more akin to
police interrogation than characteristic of a transparent and unbiased discernment of the facts.
Viewing the evidence in the light most favorable to Long, there was no opportunity for Long to
present information regarding the reasonableness of the seizure under the circumstances of the
case.
CONCLUSION
Defendants’ motion for summary judgment (ECF No. 48) is DENIED.
IT IS SO ORDERED.
DATED this 3rd day of October, 2013.

_______/s/ Michael J. McShane ________
Michael McShane
United States District Judge

9 – OPINION AND ORDER