Freeman v. City of Dallas

GARZA, M. Before EMILIO DENNIS, Circuit BENAVIDES Judges.

DENNIS, Judge: Circuit of questions presents This case of and destruction whether buildings Plaintiffs’ vacant nuisances,” Dallas, as “urban City aof and order findings only on the based Rehabilitation Urban City’s (1) Due violated Board: Standards Four- Fifth and Clauses Process the owners because Amendments teenth ad- for an opportunity an given were not magis- neutral a hearing before versary prior determination trate real of their and destruction the seizure Fourth (2) violated property; Amendment, City seized without property destroyed the Plaintiffs’ on based by magistrate a warrant issued cause. probable finding panel holds majority A this City by the hearings provided notice and Fifth and Four- constitutional satisfied guarantees Amendment’s teenth pro- without property deprivation this majority of A of law. different cess Four- holds when were violated Amendments teenth the Plain- destroyed City seized issued a warrant without tiffs’ cause. probable based judicial officer reaching district court’s results is affirmed. same PROCEDURAL AND I. FACTS HISTORY Brown Rosalyn Charles Dallas, two owned Texas. Ms. bought the building composed of members URSB. The located 2621 Meyers Street on Decem- Dallas Code procedure establishes the ber and filed a warranty deed in to be used by panels. At a hearing the Dallas County Deed Records on July owner, “an lessor, occupant, or lienholder 1993. Ms. Brown bought the building lo- may present witnesses in his own behalf , Meyers cated at on April Street and is entitled to cross-examine wit- 1993, and filed a warranty deed August nesses appearing against Dallas, him.” 3, 1994. Warranty deeds were filed on Tex., II, 27-9(c). Code ch. § art. August in which Ms. Brown of a decision hearing panel is final except percent one transferred undivided inter- that rehearings may be in certain est in both buildings brother, to her Also, instances. the code authorizes an Charles Freeman. The buildings va- were affected property owner to appeal from the cant when Ms. bought them and panel decision to the state district court remained unoccupied they until were de- for a “limited hearing under the substan- molished. tial evidence 27-9(e). rule.”' Id. § City of Dallas established the Ur- Notice of the ban URSB panel hearings Rehabilitation Standards Board (URSB) respect to the to Plaintiffs’ two determine buildings whether property condition were by mailed to reports city .persons the inspectors listed as consti- own- tute ers on violations of the City’s title building records. regard code. With to The URSB is composed building of 80 at members 2621 Meyers Street, (and alternates) who are appointed City sent by Rosalyn notices to Brown and Dallas Council. The may (the URSB K.K. owner) Stanfield previous determine, after a hearing, whether giv- panel hearing “To Consider an Order of en is an structure “urban nuisance” and Repair or Correction a Potential Urban take various remedial measures. The Nuisance.” Brown signed Ms. the return URSB is by authorized city ordinance to receipt on February 1994. This notice repairs, order receivership, the closing and listed all possible actions that the vacating of buildings, demolition, and civil take, URSB could including demolition: penalties $2,000 up to day against prop- “If the board demolition, orders closure, erty owners who fail to repair or demolish removal, vacation or and if it is done by a structure after a valid determination and city forces, you will required be pay to order has been by issued the URSB. Dal- the expenses aor lien will placed be City Code, las II, ch. § art. 27-8. the property.” This notice con- April and July of City code cluded stating, “It is important you that inspectors from Department of Hous- attend this hearing or representa- send a ing and Neighborhood Services reported tive.” regard With to the structure at URSB apart- Plaintiffs’ two Meyers Street, an identical notice violation of the was sent to person listed as the owner City’s building code. According to the in- title, on the Robert Burkhead. Ms. Brown spectors Meyers the 2611 Street building purchased the property but had not was in repairs need of estimated to cost yet her warranty filed deed. appears It $84,290.00, and the Meyers Street that neither Burkhead nor the Plaintiffs building repairs needed $108,- costing received advance notice of the hearing 680.00. with respect to the 2611 Meyers Street The URSB building, hearings scheduled but to deter- Mr. Freeman learned that it mine whether the buildings was also were in viola- involved when he attended the tion of city building code and hearing whether in response to the notice sent to remedial steps should be taken. The Ms. Brown concerning the Meyers URSB functions through hearing panels Street property. panel The URSB claimed. he each as two concerning hearing At structures— both demolish again voted February buildings on to the 2611 unanimous was the vote questioned testified Freeman

Mr. it was five building, Meyers Street looked members. building. Street Meyers the 2621 as to two structures, questioned pictures he had plans what about Freeman hearing, Freeman Mr. Mr. day of On the he had them, whether of both asked of Demolition” repair the “Notice signed tasks. accomplish time build- money Meyers or the Street he intended ap- testified nor Brown Freeman Mr. Neither ings. requested and himself the buildings to the panel decision repair the URSB pealed do to “Ap- time sufficient him A notice entitled allow panel the to court. state district con- their to the voiced members was sent panel The so. peal Denied/Demolition” ob- ability to of the Freeman’s Notice building. Mr. about of each cerns owners to ability his and Street Meyers materials of 2611 repair tain the demolition proposed Burkhead; vot- The and by himself. Freeman them to renovate mailed struc- for the both demolish demolition unanimously the proposed to notice ed and to Freeman was mailed building tures. other Free- for though notices the Even Brown. signed hearing, Freeman this Following the same sent were to Brown man and apart- both for demolition notices two mail they had received which addresses out a then sent City buildings. were of these hearings, all earlier about for each Order” Demolition “Notice no- further No as “Unclaimed.” returned Meyers Street the 2611 As to building. the before to the Plaintiffs given tice was Free- notices to structure, sent City the in late Decem- were demolished buildings Freeman Burkhead. Robert and man by demolition costs of ber March receipt on return signed Freeman and against City assessed re- notices were Burkhead’s but for of $7954.72 in the amounts No- Known.” “Attempted turned —Not Meyers Street building at 2611 sent order were a demolition tices prop- Meyers Street for the $7655.55 Freeman Charles Brown and Rosalyn erty. concerning action the URSB’s and Brown Freeman April On signed building. Freeman Meyers Street Dallas City of 11, brought suit on March notices receipts return district § federal under U.S.C. the owners stated that notice Each 1994. Brown contended Freeman court. administra- an right to your “may exercise rights under their violated City this demoli- review of rehearing tive Amend- Fifth, Fourth, and Fourteenth order.” tion provide City did not ments because and received for Freeman asked Mr. demolishing prior due adequate process May URSB from the rehearing obtain did not buildings, mem- URSB rehearing, the theAt 1994. destroying seizing and before warrant about Freeman Mr. questioned bers provide and did buildings, Plaintiffs’ materi- had the he buildings, whether two prior Plaintiffs process any due re- them, and whether repair als for against the a lien placing since made to the had pairs been demolition. costs of stated hearing. Mr. last summary judg- cross motions On materials donated some received granted partially ment, judge the trial in the unit of one pictures he submitted motion, concluding that Plaintiffs’ he had building that Meyers Street Fourteenth Fourth had violated the URSB members Several repaired. destroying seizing and by Amendments Free- that Mr. disbelief expressed war- buildings -without Plaintiffs’ for $2000 the units renovate man could cause, rant on probable based and partially (1984); L.Ed.2d 85 City’s motion rejecting Paige, the States v. 136 F.3d Cir.1998). Plaintiffs’ Fifth and Fourteenth Subject Amend- only to a specifical- few ments’ ly claim. The case was established exceptions not applicable here, submitted to a jury to determine damages seizures conducted judi- outside the § under City’s 1983 for the process, cial warrantless prior without approval by a judge and destruction magistrate, based on probable cause, buildings. jury $20,000 per awarded are se unreasonable under the damages to Freeman Amendment. Brown. The Minnesota v. Dick- erson, City appealed cross-ap- Plaintiffs

pealed (1993); following L.Ed.2d 334 entry Paige, judgment. this 136 F.3d at II. FOURTH AMENDMENT1 The seizures in this case do not government’s per seizure of a fall within an exception to the warrant son’s property implicates the Fourth requirement fashioned United States v. Amendment, which is “made applicable to Jacobsen, 109, 466 U.S. 1652, 104 S.Ct. by the States the Fourteenth]!]” Soldal v. (1984), L.Ed.2d 85 and United States v. County, 56, Cook 61, 506 U.S. 113 S.Ct. Place, 696, 462 U.S. 103 S.Ct. (1992) 121 L.Ed.2d 450 (citing Ker v. (1983), L.Ed.2d 110 allowing courts to de California, 23, 30, U.S. 83 S.Ct. cide after the fact . whether a warrantless (1963)) 10 L.Ed.2d 726 seizure was constitutionally unreasonable by balancing individual and government case, In this of Dallas Essentially, interests. Jacobsen and Place seized and destroyed the buildings owned (1) hold that a seizure lawful at its incep plaintiffs without a warrant. This tion can nevertheless violate the Fourth act undoubtedly a constituted “seizure” be Amendment its “ because manner execu cause a seizure when occurs ‘there is tion unreasonably inflinges in possessory some meaningful interference with an indi by, terests for example, a converting tem vidual’s possessory interests in that prop porary deprivation ” possessory interests Soldal, erty.’ 506 U.S. at 113 S.Ct. into permanent one; (2) and that 538 (quoting Jacobsen, United States v. assess the govern reasonableness of the 109, 113, U.S. 104 S.Ct. conduct, a court must balance the (1984)). L.Ed.2d 85 The Fourth Amend quality nature and on intrusion protections ment’s extend not only to individual’s Fourth Amendment interests searches and seizures incident to criminal against the importance government investigations but also to administrative alleged interests to justify the intrusion. searches and seizures in the civil context. Jacobsen, the Supreme applied Court 67,113 Id. at S.Ct. 538. this test and concluded that the field test protection The afforded of a trace destruction/seizure amount of Fourth Amendment extends to an individ material which already been lawfully ual’s possessory in interests property, detained, even was reasonable because loss of if expectation his of privacy in that proper the trace amount had only a de minimis ty has been completely extinguished and impact on any protected property interest no within search the meaning of that, circumstances, under these Amendment has taken Soldal, place. safeguards of a warrant only would mini 62-63, 68, U.S. 538; 113 S.Ct. United mally advance Fourth Amendment inter Jacobsen, States v. 466 U.S. Jacobsen, 104 ests. 466 U.S. at Judge Garza does not part concur in this sons. opinion and dissents therefrom rea- Cir.1997). Summary appro- judgment in added Court Jacobsen evidence, light course, more if the viewed priate where significant caveat: “Of non-movant, pres- constitutionally most favorable to substantial invasions involved, a of material fact and genuine war- issue are ents protected interests unreasonable if entitled to or seizure is the movant is rantless search 56(c). exigent circumstances.” Fed.R.Civ.P. absence of matter of law. (citing 125 n. Id. at pro Amendment The Fourteenth authorities). “any government depriving from hibits balancing Thus, test the Jacobserir-Place life, liberty, property, or without person of in this case. sei appropriate is not Const, of law.” amend. U.S. plaintiffs’ property real zure of the guarantee procedural This affords XIV. Because their inception. lawful in its Williams, v. Daniels protections. perma totally were seized 327, 331-32, 106 S.Ct. 88 L.Ed.2d destroyed, it cannot be said nently (1986). government give must impact only de minimis seizure had its to an individual of reasonable notice their interests. protected life, liberty, him of deprive intention inter plaintiffs’ protected invasions of Hanover property. Mullane Central Under ests more than “substantial.” Co., 306, 313-15, 70 & Trust Bank circumstances, it cannot be said that these 652, 94 L.Ed. 865 It also have of a warrant would safeguards a meaningful oppor him with provide must only minimally Fourth Amend advanced Eldridge, be Mathews v. tunity to heard. of this panel interests. Another 319, 893, 333, 47 424 96 S.Ct. L.Ed.2d U.S. recently holding that court held (1976); Mullane, 313-14, 339 at 70 18 U.S. to cases would not be extended Jacobsen Mathews, Following we S.Ct. 652. assess seizures. United involving permanent by process considering what is due at Paige, F.3d 1022. Because States v. 136 balancing three distinct factors: circumstances, exigent there were First, private interest that will be destruction of warrantless action; second, official affected and a plaintiffs’ property unreasonable deprivation of an erroneous of the risk of the Fourth Amendment. Ja violation through procedures such interest 28, cobsen, 125 104 at n. S.Ct. U.S. value, used, if any, of probable 1652. procedural or safe- additional substitute guards; finally, the Government’s III. DUE PROCESS2 interest, including the function involved court The district the fiscal and administrative bur- judgment summary motion for Dallas’s that the additional or substitute dens process re on the issue whether due procedural requirement would entail. in the seizure quirements were satisfied Mathews, 335, U.S. S.Ct. 893. property. of Plaintiffs destruction approach reflects the fact that “due grant summary This This court reviews novo, process proce- for such same is flexible calls applying de stan v. as the situa- protections particular the district court. Martin Me dural dard as Brewer, 1143, Morrissey v. Hospital, 130 F.3d tion demands.”3 morial procedural pre-deprivation safeguards Judge agree with the ma- when 2. Dennis does not jority part opinion protect expected against type as to this and dis- be cannot involved, sents therefrom with reasons. deprivation post- we find hearing process. deprivation satisfies due See test, we Applying 3. the three-factor Mathews 128-30, 139, 984-85, 110 S.Ct. at id. at usually must be heard hold that the individual prior deprivation. Zinermon See 113, 127-28, 975, Burch, 494 U.S. 110 S.Ct. However, (1990). 108 L.Ed.2d 408 U.S. 92 S.Ct. 33 We conclude that the URSB panel relat- (1972); L.Ed.2d 484 accord Faulder v. ed to the Plaintiffs the evidence supporting Paroles, Texas Bd. Pardons & 178 F.3d the Department’s recommendation to level (5th Cir.) (“Proce curiam) (per the apartment buildings. During the re- process dural due is an inherently flexible hearings, well as the tour of Mey- — denied, concept.”), U.S. —, cert. 119 ers Street preceding them, URSB —2362, L.Ed.2d — (1999). conveyed members to Freeman their con- cerns over the condition of The Plaintiffs contend they buildings. Other members alerted him to were denied a meaningful opportunity to the repair cost estimates.4 Freeman chose be heard on the future of the apartment not to call the Department officials who they were not told that cited the buildings for code Department of Housing and Neighbor violations persons other as wit- hood Services had briefed members nesses. Nor did Freeman seek to learn on their they properties, were provided more about the repair cost estimates after with the Department’s information on their the panel informed him of them. See properties, they were not given notice of Perales, Richardson v. U.S. the tours of their properties by URSB 91 S.Ct. (1971) (find- 28 L.Ed.2d 842 panel members, and Department offi ing that the individual had an opportunity cials reported who the code violations were to confront the evidence him where not present at hearings either the or the the government’s reports were available to rehearings. generally We find a proce him, and the witnesses were known and dure to violate due gov when the subject to subpoena and cross exami- ernment fails to its reveal evidence. See nation); City West Covina v. Per- Greene v. McElroy, 474, 492-97, Cf. kins, 678, 681-82, 3 L.Ed.2d 1377 142 L.Ed.2d 636 (1999)(holding that Non-disclosure government poses government need not tell an individual how the risk of an erroneous deprivation be to recover property pursuant seized cause it to a forecloses the individual from test police search where state ing the the statutes accuracy of and government’s the evi so). caselaw do dence. 496-97, id. at Because the panel See URSB 79 S.Ct. 1400. made This Freeman is aware of the great threat so that it circumstances generally favoring demolition, outweighs considerations Plaintiffs’ favoring non-dis assertion closure. that the way Robbins v. in which the R.R. Board States reached Board, Retirement the decision to destroy 594 F.2d apartment 451-52 the (5th Cir.1979). buildings Joint to Anti-Fascist failed accord with due process Cf. Refugee McGrath, Comm. v. without merit.5 171-72, (1951) 95 L.Ed. 817

(Frankfurter, J., (“No concurring) better The Plaintiffs also contend that instrument has been devised for the arriving of absence a hearing before the liens at truth give than to a person in jeopardy attached to their properties violated due of serious loss notice of the against process. case They assert that this omission him it.”). and opportunity to meet process violated due because it resulted in the Before rehearings, the URSB ings Newman, met immaterial. See Glenn v. Department staffers to discuss Free- 1980) F.2d Cir. (holding request man’s rehearing waive the fees. that the decision to terminate the plaintiff According transcript briefing, this after an parte hearing ex did not due offend this discussion did not focus on whether to process mayor city the council apartment raze the buildings. plaintiff's later the heard evidence and reaf terminate). firmed their decision to surrounding events rehearings the make at non-disclosure the earlier hear- vacant, Dallas, A Texas. in Street located demolition unreasonable incurring City

the building apartment eight-unit dilapidated to them.6 on passed costs, which were to rent Brown intended lot. on each stood merit. lacks argument Plaintiffs’ making repairs. after units thirty and Brown Freeman City gave option Neigh- This Housing the demolitions. Department to effect days risk exorbi cited (“Department”) them Services protected borhood costs hearing non-compli- on A for costs. demolition both tant done Re- have Urban could Minimum City’s the demolition ance with before (“Code”). conclude we Code Accordingly, Standards more. habilitation cor- the attachment hearing before Code violations lack of When process. to the Urban due matter rected, violate did not referred liens it Cf. 127-30, (“Board”), Burch, Board Standards Zinermon Rehabilitation 108 L.Ed.2d demolition. and recommended search, conducting title After CONCLUSION IV. hearing on each a notice mailed Board reasons, we AFFIRM foregoing For the of record.1 the owner properties to of the in summary judgments the district court’s the Board announced The notice on City of Dallas favor remedy the demolition might order Plaintiffs of the favor claim that the further stated It offenses. Code claim, and the Amendment Fourth on their oppor- an given “be owner would § for the damages under award if and witnesses evidence tunity present Amend- Fourth Plaintiffs’ violation so desired.” rights. ment hearings, Depart- preparation panel of Board briefed ment staffers GARZA, Judge, Circuit M. EMILIO fate of the to decide assigned members dissenting part: pro- They also properties. Meyers Street Rosalyn Freeman Charles on with information members vided (“City”) vio- Dallas City of allege cost esti- including repair properties, Amend- and Fourteenth Fourth their lated on of them mates,2 some accompanied The district rights. court premises. a tour of Freeman summary claim, hearings, Amendment appeared Brown on the “attorney-in-fact Amend- the Fourteenth as the himself identifying I 2611 and owner of Judge Benavides as an claims. for Brown” ment I alone he that holding. He reported second Meyers with the Street. agree I Accordingly, funds, for more one. and asked with the first disagree was without Free- Because part. repairs. make time to dissent repairs finance to inability man’s I or- ownership, the his doubt about apartment of each the destruction as dered known properties acquired nuisance.3 an urban building as Meyers and 2621 Street Meyers the Code to how address Board decided the $2000 more point to the than 6. The Plaintiffs violations.) estimated the disparity between actual building apartment for each costs demolition City paid too much. proof that the as esti- determined Department $84,290.00 for repairs totaled cost of mated notice give Freeman did not Board 1.The $108,680.00 for Meyers Street and in either no interest he had Meyers Street. a notice on It sent Brown at the time. Street, she was property of which the Meyers as nuisance” “urban defined an 3. The Code (Brown the became of record. owner the following: the after Meyers Street of record owner successfully Freeman petitioned the MR. KIRKPATRICK: And I strongly panel for a rehearing. The appreciate Board then you [sic] intent with you what mailed a notice of the on 2611 would rehearing like to do with [ie., the property Meyers Meyers to Street Freeman Street]. and a notice of The property inis serious rehearing disarray mean, Meyers foundation, Street —I structurally. We Freeman and saw ... Brown. The looked at substance of staff these notices for improvement. was identical recommendations to that of the you Are aware of the total earlier hearing which they notices. estimated, have $84,310? Two panel members visited the proper- ties before rehearings. They exam- MS. LOCKLEY: Are you aware of the ined the exterior of apartment building amount money the staff has sort of at Meyers Street. They ran into generally up come with to say how much Freeman at 2621 Meyers Street. He your expenses might be for the repairs showed repairs them inside of apart- [to 2621 Meyers Street]? ment building. They told him to bring Despite statements, such Freeman neither photographs of repairs to the rehear- inquired about the basis for repair cost ings.4 estimates nor asked to question the De- partment officials responsible for them.

At rehearings, Department showed pictures of apartment again build- voted declare the ings’ exteriors. Freeman said that he an- urban nuisances and ticipated to order acquiring most of their destruction the materials because it still unpersuaded required to make repairs at Freeman possessed little or no cost. ability He further financial repairs make stated that he hoped to timely manner. repairs finance through a loan received a from no- tice of City, demolition for and had each property at received commitment from end of the rehearings. relatives in notice construction identi- business to fied parcel by lot help number, him block make repairs if as he secured fund- well address, street ing from the City. stated that Freeman also submitted the panel’s decision could be appealed photographs repairs made to the interi- state district court for or of review under building at 2621 Mey- substantial evidence rule. ers Street a list of materials he already. collected Finally, he asserted The Board also sent notice of the that he could upgrade each unit of the order to demolish the apartment building apartment building 2621 Meyers Street at 2611 Meyers Street to Freeman and a for $2000.00. Panel responded members notice of the order to apart- demolish the skeptically to Freeman’s presentation. building at 2621 Meyers Street Among their comments to Freeman were Freeman and Brown. Each notice de- the following: clared, in part: premises [A] (A) or structure that: the area and the character of the communi- reasonably is dangerous physical situated, ty they in which are which condi- safety health or occupant an of or other tion be substantially would offensive and person; or annoying persons to ordinary of sensibili- (B) because of violations of [the Code] ties, tastes, living and habits in the commu- disrepair its state of is such it could that nity. reasonably harm, injury, cause damage, or I, 27-3(23) § ch. art. Dallas, Tex., Code inconvenience to a portion considerable of the community in use and enjoyment the of property, materially interfering with the 4. Before rehearings, the the with met

proper use or enjoyment comfort and Department staffers to discuss Freeman's re- surrounding property, taking consider- into quest rehearing to the waive fees. ation the nature properties use of the and in a After claims. structure(s) Amendment Fourteenth the demolish not you If do Amend- Fourth for [ie., the damages on 30 trial indicated above time the within $20,000.00 jury awarded violation, a this ment to have arrange city will the days], Timely appeals Brown. de- and of that to Freeman expense the and work done judgment. entry of final with the contract followed under performed molition real on a lien the constitute city will the structure(s) were the which on property II the run will located, lien and that judg- summary grant review We land. v. John- States novo. See ment de the petition did not and Brown Freeman Cir.1998). (5th son, F.3d demoli- the to review court district state no if “there occurs Summary judgment to raze they failed When tion orders. fact and any material toas issue genuine days, the thirty within buildings apartment judg- is entitled party moving ... It did do so. a contractor City hired Fed. R. Civ. of law.” P. a matter ment as demoli- discuss hearing to convene not only the 56(c). encompasses Our review undertook contractor before costs tion its based court the district on which record judicial did it obtain Nor performance. Ehrman, F.2d Topalian ruling. See demolitions, at- a lien After the warrant. Cir.1992). 1125,1131-32 10n. equal piece to each tached for $7954.72 the cost of demolition— III Mey- for 2621 Meyers $7655.55 Street more lien exceeded Each ers Street. court the district argues that cost estimate the demolition than $2000.00 summary granting erred it made when had Department the Fourth on Freeman viola- buildings in apartment found view, the district In its claim. Amendment Code. of the tion of a the lack valid held that wrongly court a 42 U.S.C. filed and Brown Freeman demolitions rendered warrant They al- City. against § 1983 action impermissible buildings apartment the destruction leged seizures.5 sei- unreasonable an constituted declares: The Fourth Amendment Amend- Fourth of the in violation zure to be secure people right way maintained They also ment. houses, and ef- papers, persons, their to demolish had decided in which fects, unreasonable searches imposition buildings violated, seizures, not be shall the Fourteenth contravened hens issue, probable upon but shall Warrants procedural guarantee Amendment’s affirmation, or cause, by Oath supported process. place to describing the particularly sum- moved and Brown Freeman things or searched, persons and the be Amendment the Fourth on mary judgment to be seized. City requested response, In claim. if determining Const, IV. amend. The U.S. claims. all summary judgment action violates governmental particular summary judgment district court initially we guarantee, constitutional this Brown on whether, action or consider must claim, City’s cross- denied Amendment search an unlawful regarded judgment on summary motion for when common law under the claim, Fourth Amendment Wy- See framed. Amendment City on summary (1992) (tearing mobile home 450 L.Ed.2d 121 demoli contest City does not County, towing it to another its foundation from v. Cook See Soldal tions seizures. were seizure). 549, 538, 72, is a 56, lot l., S.Ct. U.S. 113 506 Il

611 — oming Houghton, v. —, U.S. 119 tended commercial use of 1297, 1300, (1999). S.Ct. 143 L.Ed.2d 408 buildings lessened the interests of Free- When this examination of the historical man and Brown. See New York v. Burger, yields answer, record we must decide 691, 700, 482 U.S. 2636, 107 2642, S.Ct. 96 whether or not the action was reasonable. (1987) (“An 601 L.Ed.2d expectation of id.; See Robinette, see also Ohio v. 519 privacy in commercial premises, however, 33, 39, 417, U.S. 421, 136 117 S.Ct. L.Ed.2d from, is different than, indeed less a (1996) (“the 347 touchstone of the Fourth similar expectation in an individual’s (internal Amendment is reasonableness” home.”); Omaha, Hroch v. City 4 F.3d quotations omitted)); Carroll v. United 693, (8th Cir.1993) (demolition 697 case) States, 132, 147, 280, 267 U.S. 283, 45 S.Ct. (finding that the owner’s interest in com- (1925) (“The 69 L.Ed. 543 Fourth Amend mercial property “was negligible because ment does not denounce all searches and he failed to take precautions ‘normal seizures, only but such as are unreason ”). maintain his privacy’ contrast, able.”). A “reasonableness determination City possessed a strong interest in demoli- ... a reflects ‘careful balancing govern tion—the need to protect public from ” mental and private interests.’ Soldal v. hazardous buildings. See Camara v. Mu- III, Cook County, 56, 71, 506 U.S. 113 nicipal Court City & County San 538, 549, 5.Ct. (1992) 121 L.Ed.2d 450 Francisco, 523, 537; 387 U.S. 1727, 87 S.Ct. (quoting Jersey T.L.O., New v. 469 U.S. 1735, (1967) 18 L.Ed.2d 930 (discussing 325, 341, 83 L.Ed.2d when a housing inspector may inspect (1985)). 720 We a deem seizure reason warrant) (“the without a public able government when the has acted pur interest demands that all dangerous condi- suant judicial to valid is, a warrant —that prevented abated”). tions be It, or more- warrant supported by probable cause that over, effected the after seizures particularly describes the things to be and Brown had received notice, reasonable seized. See Place, United States v. 462 a meaningful opportunity heard, to be 701, 696, U.S. 2637, 103 2641, S.Ct. 77 judicial chance to seek review. This due (1983). L.Ed.2d 110 We uphold also process guarded the interests of Freeman seizure made without a judicial valid war just as well as a valid rant if it strikes appropriate balance warrant. See Meriwether, Samuels v. 94 between the competing private and gov (8th F.3d Cir.1996) (“[Our] ... ernment interests. See Johnson v. United States, holdings, suggest that an 10, 14-15, abatement [of nuisance] carried out in 92 L.Ed. with accordance example, For procedural some due circumstances may we permissi [as find reasonable ble a the Fourth warrantless seizure of Amendment] in absence of occurs government after the factors that provided has outweigh governmental process. interests.”); owner See v. City Ana, G.M. Conner Santa Leasing Corp. States, Cir.1990) F.2d (Trott, n. J., (“A 628 n. dissenting) warrant —and pro- (1977) (“These L.Ed.2d n. cases, of cess used to attain it—would have added course, upon center the Due Process nothing to the [property ... pri- owners’] Clause rather than the Fourth Amend vacy in light of the equivalent substitute ment, but analysis constitutional is process they receive, did indepen- result.”). similar yields a like [judicial] dent review to which they I agree with entitled.”). the City that the demoli- therefore did tions were reasonable seizures.6 The in- violate Fourth Amendment in this arguments Neither side makes regarding Instead, Amendment was framed. everyone type lawfulness of seizures at issue focuses the reasonableness of the seizure. here under common law when the Fourth

612 protection, constitutional of sources holding other- in errs majority The ease.7 United Amendments. Fifth Fourth wise. Prop Real Daniel Good v. James States 492, 49-50, 43, S.Ct. 114 510 U.S. erty, IV (1993); v. Cook Soldal 490 L.Ed.2d 126 conclude majority, I Unlike 70-71, 56, 61, 113 S.Ct. U.S. County, 506 summary improperly court district (1992). Although 450 538, 121 L.Ed.2d Brown on the to Freeman Real Good Daniel in James decision claim. Amendment Fourth procedural upon was based Property part. in dissent Accordingly, I Due Amendment’s Fifth of the protections pro similarly worded Clause, the Process dissenting in . DENNIS, Judge, Circuit of the Fourteenth protections cedural part: apply Clause Process Due Amendment’s municipalit states force to equal person’s aof governmental

A ies.1 textual explicit two implicates property search warrant for magistrate's a tended that analysis its patterns apparently majority

7. with.”). dispensed may be v. Conner claim on Amendment the Fourth of City Ana, Cir. 1487 897 F.2d Santa Four has held Supreme Court Conner, municipal authorities 1990). In "le Clause Due Process teenth Amendment’s of two confiscation that warrantless claimed citizens extend operates to gitimately private on located automobiles abandoned protec the same States and residents entry because permissible property legislation, affect arbitrary state tion by hear numerous preceded and seizure life, as is offered property, liberty ing 1489, 1490-91. at id. appeals. See ings and legisla against similar Amendment the Fifth argument, rejected the Circuit Ninth Smith, 191 U.S. by Congress.” Hibben v. tion obliged Amendment Fourth holding that the 88, 325, 310, 48 L.Ed. 195 24 S.Ct. judicial warrant a valid to secure the officials Amendment, the Fifth guarantees of Of the "any [that] ... case absence held not has been jury clause only grand the war exception to 'process’ has created Ronald D. 2 the states. applicable to to be I'd. at requirement.” rant Nowak, on Con Treatise E. & John Rotunda a warrant- Conner. When disagree with I (2d 14.2, ed. 347-48 at § Law stitutional any of to fit within fails or seizure less search California, 110 U.S. 1992) v. (citing Hurtado requirement, the warrant exceptions to (1884)). 111, 516, 232 L.Ed. 28 4 S.Ct. not, did in Conner Circuit Ninth as we do compulsory prohibitions Fifth Amendment case, reflex- in this majority does and as jeopardy were double self-incrimination Rather, we balance it. ively invalidate Malloy v. in to the states applicable made deter- private interests governmental and 1489, 1, L.Ed.2d 12 Hogan, U.S. 84 S.Ct. 378 search of the warrantless legality mine Maryland, 395 U.S. (1964), v. Benton States, 653 784, v. United See Whren seizure. (1969), 2056, 707 L.Ed.2d 23 S.Ct. 1776, 89 1769, L.Ed.2d 135 addition, although the Fifth respectively. princi- (1996) ("It of course true is 89 provision compensation just case, Amendment's it since every Amendment ple incorporated "technically” determination,’ been has not upon a 'reasonableness turns states, held that has "the Court factors.”); against the balancing relevant of all involves guar process due 581-84, 565, amendment Acevedo, the fourteenth U.S. 500 v. California against a safeguard same provides the 1992-94, 1982, antee 114 L.Ed.2d S.Ct. just without com taking of state’s J., judgment) (Scalia, concurring in the (1991) Nowak, supra, Rotunda & reasonableness, pensation.” not the exis- (recognizing that Q. Co. 14.2, Chicago R. (citing B. & warrant, § the Fourth judicial of a valid tence S.Ct. Chicago, 166 U.S. concern); v. Johnson chief Amendment’s v. Cali (1897)). Hurtado also 14-15, See L.Ed. 979 States, U.S. fornia, (1948) ("When 92 L.Ed. J., (Harlan, dissenting) (1884) L.Ed. 232 reasonably yield to the privacy must right of provided that 'no ("[T]he rule, [amendment] 5th is, decided be right of search life, liberty or deprived be person officer, shall police-man or by a This law.' without property, are agent. There enforcement Government the clause that of which, language is similar bal- exceptional circumstances examination. now under 14th amendment law enforcement ancing for effective the need accidental, evinces but similarity was not That may be privacy, it con- right of against the not, The City not, does and could (1974). dis- 23 L.Ed.2d 349 Mitchell v. Cf. pute that the seizure and destruction of Co., W.T. Grant 600, 416 U.S. 94 S.Ct. plaintiffs’ real property 1895, deprived them 40 L.Ed.2d 406 Due Process of property protected interests by the also requires that individuals must receive Fifth and Fourteenth Amendments’ notice and Due an opportunity be heard be Process Clauses. City argues, fore howev- the government deprives them of er, that a hearing property. before a James Daniel Good Prop Real City’s own Urban erty, 48, Rehabilitation U.S. at Standards 114 S.Ct. 492 (citing Board plaintiffs afforded the $8,850, all United pro- States v. supra; Fuentes v. Shevin, cess they were due supra; before their property Sniadach v. Family Fi was seized and destroyed. Corp., 342, nance Although 395 U.S. at 89 S.Ct. 1820 (Harlan, J., majority agrees, I believe concurring); that in the ab- Mullane v. Cen sence of tral an Hanover extraordinary situation, Co., Bank & Trust which 339 U.S. did not 652, exist in present case, (1950)). S.Ct. 94 L.Ed. the Due that, Process require Clauses per- before a In United States v. James Daniel Good son is deprived of his property real by the Real Property, supra, the Supreme Court government, he must be given notice and that, held in the absence exigent circum- an opportunity for a meaningful hearing stances, the Due Process Clause requires before a neutral magistrate, and that there government to afford notice and a must judicial be a determination that the meaningful opportunity to be in an heard justified. seizure is adversary hearing, to requisite ensure the neutrality that must governmental

Where inform government seizes property decisionmaking, before seizing preserve real proper- evidence of criminal ty subject to civil 48, forfeiture. Id. at wrongdoing but 53- to assert ownership and 56, 114 S.Ct. 492. The protection control of an property, over the its action must adversary hearing before a neutral magis- also comply with the procedural protec trate is particular importance tions of where the the Due Process Clauses of the government ahas direct pecuniary interest Fifth and Fourteenth Amendments. See in the outcome of the proceeding. Id. at United v. States James Daniel Good Real 55-56, 114 S.Ct. In James Daniel Property, 43, 49-50, 510 U.S. 114 S.Ct. Good Real Property, Supreme 492, Court (1993), L.Ed.2d 490 and footnote emphasized “[t]he 1, constitutional limi- supra. Supreme Court’s prece tations we enforce in this case apply dents general establish the rule that Due real general, not simply to requires that, Process absent an extraordi 61,114 residences.” Id. S.Ct. 492. nary situation, a party cannot invoke the power of the state a person’s seize Accordingly, the Due Process require- property without prior judicial determi notice, ments of a meaningful adversary nation that the justified. seizure is hearing before a neutral magistrate, and a $8,850, States v. 555, 12, 461 U.S. 562 n. determination justification must 2005, 103 S.Ct. (1983) (cit 76 L.Ed.2d 143 be afforded to a person before his real ing Connecticut, v. Boddie 401 U.S. property is seized and destroyed in order 378-379, 91 S.Ct. 28 L.Ed.2d 113 to abate rehabilitate an nui- “urban (1971)). See also North Georgia Finish sance.” a case such present one, as the ing, Di-Chem, Inc. Inc., v. 95 there is need for equally rigorous adher- (1975); L.Ed.2d 751 Fuentes ence to the principles of Due Process as in Shevin, U.S. 32 civil forfeitures of real property. (1972); L.Ed.2d 556 Sniadach v. Family of Dallas has pecuniary interests in the Finance Corp., outcome such proceedings, e.g., justify- purpose impose upon life, the States the ing same liberty property, which had been

restrictions, respect proceedings imposed upon involv- Government.”). the General renewal urban state federal for tion tax municipal enhancement grants; of old replacement by promoting base for need new ones. buildings with capricious arbitrary, safeguards subjective based seizures

unreasonable in “urban greater may be even

standards cases. rehabilitation” or “urban

nuisance” cannot hearing

Moreover, post-seizure cases remedy in such any

provide be restored cannot destroyed property the sei- whether evidence best

and the demol- have been will justified

zure was necessary to accom- is also. It

ished urban goals legitimate City’s

plish whose real owner that an

rehabilitation destroy be City proposes meaning- opportunity of an

deprived hearing before adversary pre-seizure

ful magistrate. judge or impartial

neutral seizure city postpone

Requiring the hearing and after such until

destruction is seizure

judicial determination administra- significant creates

justified results harm that And burden.

tive comparison minimal delay

from erroneous by the

injury occasioned Id. property. of real

and destruction

59,114 S.Ct. 492. DRAGOO; Bar- Roy E. Matter

In the Halpin; Thomas Dragoo; Mark

bara Moore, Debtors. Cecial

John E. Myers James

Joan

Porter, Appellants, Bankruptcy Akard,

John C. Appellee.

Judge, 98-10969.

No. Appeals, Court States

Fifth Circuit. 18, 1999.

Aug.

Case Details

Case Name: Freeman v. City of Dallas

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Aug 23, 1999

Citation: 186 F.3d 601

Docket Number: 97-10907

Court Abbreviation: 5th Cir.