Jerry W. Matthias and Kathryn A. Schurber v. Dallas H. Bingley, City of Houston
906 F.2d 1047
5th Cir.
1990
Check Treatment

*1 plaintiff “matter of fact” which the must a schedule to be fixed the Clerk. Costs prove, there is “no uniform but method.” will be assessed at the conclusion of this However, stresses, Id. as Brewer appeal. unless a proposed single-member district contains a We are reluctant to return this case voting age minority sufficient population to the district deciding court before ap- possess potential preferred to elect its peal. We are well aware that the com- representatives, redistricting is a hollow Voting mands of the Rights Act are not remedy. always easily Nonetheless, discovered. we sought Citizens to resolve the ambiguity equally are firm in our insistence that there prior panel opinion by identified our is more work to do.

presenting minority voting age population REMANDED. data, minority registration voter data and evidence that blacks would have been able

to elect the black candidate in the 1989race single-member aldermen dis-

trict scheme. district court refused to

consider this relevant evidence and instead findings

issued of fact and conclusions of upon

law already based what we had found Simply reviewing an unclear record. Jerry Kathryn W. MATTHIAS A. appellate previously record before us in Schurber, Plaintiffs-Appellees, requested findings order make the was responsive to our mandate there unless Hence, was no further evidence available. BINGLEY, al., Defendants, Dallas H. et the district court should have consulted the parties as to the availability of additional Houston, Defendant-Appellant. voting evidence on whether a age black majority any hypothetical existed dis- No. 88-6125. trict. requested Had the district court ad- United Appeals, Court of States evidence, ditional it would have discovered Fifth Circuit. purportedly Citizens had such evi- dence; district court erred in fail- July ing to proffered seek or consider the evi- dence.

V.

We remand this case to the district court proceedings, including further a hear-

ing opportu- Citizens will have which

nity to adduce the evidence referred to in and, course, motion defendants respond.

will

district court should supplemental enter

findings of fact and conclusions of law on

the two issues discussed and on other parties

issues raised the evi-

dence referred above. The will be panel to this

returned where a decision will record, existing on the aug- rendered hearing.

mented No further notice appeal need be filed Citizens. The

parties may supplemental submit briefs on *2 Mala- Cambrice, Murray E. L. Robert West, A. Attys., Clarence

koff, Asst. defendant-ap- Tex., Houston, for Atty., pellant. Sheinfeld, Maley & Shults, A. Robert Hanby, Essmyer & Hanby, J.

Kay, Clinard plaintiffs-appellees. Tex., for Houston, GOLDBERG, and POLITZ Before Judges. JONES, Circuit Judge: GOLDBERG, Circuit Facts Statement of Bingley, Al- H. Dallas August, (“the City Houston Harris, other len lawfully seized police officers City”) Matthias Jerry belonging in- property Kathryn Schurber. cassette a video equipment, stereo cluded cameras, three projector, recorder, a movie serving briefcases, silver binoculars, two hunting coins, knifes gold jewelry, pieces, mementos. rifles, personal tagged Bingley, detectives, Harris two groups three into 5-521-1, and 5-539-7. 5-518-1, numbered over seized They turned the Houston Division Supply & Harris’s All of Department. Police complied fully actions Bingley’s depart- City ordinance applicable regulations. ment Divi- Supply Property & though the Even two detectives stored sion disposition. property’s controlled not do could Supply Division Property & detec- until the with the anything Authoriza- “Disposition completed tives holding Form.” After tion Supply Divi- Property & days, ninety Forms Authorization Disposition sent sion seven list The forms detectives. to the two (1) hold property: handling the options case; (2) investigation; for court identify, hold for locate and notice to the law- (3) possible surety indemnity hold bond ful owner of unclaimed property.” agreement; photograph and release to The ordinance specify does not how offi- owner; (5) (or release to owner authorized cers the identity determine of the lawful *3 (6) person); dispose of as by authorized owner. require Nor it does officers to noti- ordinance; (7) by not wanted this divi- fy person the they from whom seized the from_ sion, seek authorization property unless the officers believe that (4) Options (5) require the officer person is the lawful owner of the completing the form to state the method of If the person officers decide that the the notifying person. owner or authorized not own the the officers need not options The list three forms of notification: notify person give opportuni- or her an (a) (b) person, by phone, (c) in by or mail ty If, to be good heard. after a faith (must certified, receipt requested, be return effort, the officers cannot determine the property more). if is valued at or An $200 identity owner, the lawful may (6) option asterisk next provi- to refers to a authorize Property the Supply & Division appears sion that at the bottom of the dispose to property provided the as provision form. That reads: the ordinance. # [Dispose Alternative of as Autho- The completed two detectives by City least rized is to be selected Ordinance] Disposition four Property after the Forms. On property longer is no No- need- again ed as evidence or vember 1982 and May on investigation, after all reasonable efforts to return the Harris instructed the Property & property rightful owner have been Supply Division investigation to hold for by investigative exhausted the division. the batch of property tagged (op- 5-521-1 2). tion On Bingley November Ordinance Section 34-31 establishes instructed Property Supply & the Division steps the an officer must take before in- dispose to tagged of the batch 5-518-1 structing as Property Supply & Division to authorized dispose (6) by (option 6). ordinance property (option on the form).1 requires Neither police ordinance the detectives nor the Property & good officers to “make a Supply faith effort to notified Division Matthias and provides: (30) The ordinance thirty days minimum of within which to however, property; provided, reclaim said identify 34-31. Sec. Effort and locate given that in no event shall the date such made; property of unclaimed owner subject prop- owner to reclaim the unclaimed notice. erty (90) ninety days than less from the (a) police department good shall make a property possession date such came into the identify, give effort to faith locate and notice police department. of the The notice shall proper- to the lawful owner of unclaimed additionally state that if the owner fails to ty. When the lawful owner has been deter- property by reclaim such date stated in mined, given by police notice shall be notice, property such shall be deemed department as follows: disposed abandoned and shall be of in the (1) notice; Personal prescribed manner herein below. (2) Telephone notice when the conversation (b) Upon expiration period of a of not less owner; held with the is lawful (90) ninety days than from the date the (3) property In the case of awith fair mar- possession police came into of the city value in the ket of less two hun- than hereinabove, if, department as described after ($200.00), dred dollars United notice effort, good the lawful owner faith of such States mail to the lawful owner’s last known property not been determined or if has address; or lawful owner has been notified property In the case of awith fair mar- department as aforedescribed and has failed city value in the ket of two hundred dollars property timely to reclaim in a such manner ($200.00) more, notice States United aforedescribed, such shall be mail, receipt requested, certified return disposed deemed abandoned and shall be lawful owner's last known address. described manner hereinbelow. shall state that 1968; 34-15.3; certain is 77-561; Code Ord. No. Section being police department, give held convenience, Section For 3-16-77. we will location address of where provision such refer to this in the ordinance as "Ordi- stored, being held or the owner a nance 34-31." in- Goodrum disposition. dispose learned planned that the Schurber McCormick, sergeant H.L. structed of the Division, investigate Supply Property & Property & November On proper- disposition of unauthorized Disposition sent Supply Division authorize did not He 5-539-7. ty in batch detectives Form to (presumably 5-518-1 of batch investigation form returned When the 5-539-7. batch fully com- department Division, “Harris” Supply Property & it regulations department plied right upper longhand on appeared report- batch). McCormick disposed of 6, which Option form. hand corner responsi- had the apparently that Harris ed Supply Division Property & directs *4 5- batch form for the complete bility to as authorized property of the dispose er- human concluded Goodrum 539-7. No-one ordinance, checked. had been disposition. unauthorized the caused ror required. form as signed the dated and the Hous- then instructed chief police The re- Supply Division & Property the When investigate Division Affairs Internal ton 5-539-7, per- the for batch form the ceived in 5-539- property batch the disposal of the Disposition Forms Property sorting the son Affairs Internal the not instruct He did in a stack form unsigned placed the of the investigate disposal the Division City Ordi- Authorized of as “Disposed Prop- the Like 5-518-1. in batch property form, the signed no-one Because nance.” Af- Division, the Internal Supply erty & should Supply Division Property & the error that human Division concluded fairs Burglary to the the form returned of batch disposal unauthorized the caused signature and Division and Theft investiga- these result As a 5-539-7. Supply & Property date. No-one Division Supply Property tions, & and notify Matthias attempted Division property Now procedures. its changed disposition. pending Schurber receiving until the disposed may be Property & December On personnel Division Supply & Property in transferred the Supply Division lieu- Division Supply Property & either Treasury De- City’s 5-518-1 batch signs the sergeant day shift tenant Salvage Division. Surplus partment’s Disposition Form. Property Division Supply & so, Property doing seized their the officers After regu- department police fully with complied asked repeatedly and Schurber Matthias 25, 1983, January On lations. Finally, property. City to return transferred Division Supply & Schurber gave Matthias and judge state Surplus and City’s to the 5-539-7 in batch to return instructing the order court had one Because no Salvage Division. presented they When property. the transfer required, as the form signed 1984, they discover- January, in order court reg- department comply did most of City had sold ed proper- most of City sold The ulations. and 5-539-7 5-518-1 erty in batches public auctions batches at two ty plain- The City use. rest to converted June, 1983. May and the converted some recover did tiffs Bingley Harris July On property. disposed of had discovered City and sued the and Schurber Matthias 5-539-7. in batch 42 U.S.C. under department2 Goodrum, 9th, Earl B. Captain August On disposi- challenged the They 1983.3 Division, Section Supply Property & chief of of Co- Territory or the District any convenience, State two to the we will refer 2. For subjected, lumbia, subjects, or causes plain- City.” collectively The "the defendants per- or other States any the United two citizen Bingley Harris. The sued tiffs also dep- to the jurisdiction thereof the suit. son within dismissed have been officers rights, privileges, or immuni- any rivation laws, provides: by the Constitution secured Section 1983 ties U.S.C. 3. injured ac- in an party statute, be liable shall who, color of Every person law, proper equity, or other custom, tion at suit ordinance, usage, of regulation, tions of the in both batches 5- of the City if we are Instead, so inclined. 518-1 and 5-539-7. The contend- only may reverse and order a new trial. ed that process violated their due Zervas, 9; 861 F.2d at 832 n. Smith v. rights give because it failed to them notice Co., Drilling Trans-World 772 F.2d 157 opportunity and an to be heard before dis- Cir.1985); 5A Moore’s Federal Prac- posing property. of their (2d ed.). tice Section 50.12 jury plaintiffs. found for the In its special interrogatories, answers to Discussion jury found defendants followed official The City’s Policies Violate the Due City policy give failed to Process Clause opportunity and an to be heard to Matthias protects Section 1983 rights all disposing Schurber before of their guaranteed by the Fourteenth Amendment. jury also found that Telephone Home Telegraph & Co. v. Los failure to notice and an Angeles, proximately be heard caused the loss of (1913); L.Ed. 510 Findeisen v. Matthias’s and North East Schurber’s Independent District, School 749 F.2d 234 $55,000 plaintiffs sought compen- *5 (5th Cir.1984). The Fourteenth Amend satory damages, pre- post-judgment in- ment’s Due Process Clause states that terest, fees, jury and costs. The awarded State deprive any person of “[No] [shall] $55,374.88 damages. them in After an evi- life, liberty, property, pro without due dentiary hearing, judge the district award- course, cess of law.” Of plaintiffs’ $25,241.88 ed the in prejudgment personal belongings disposed by City in $67,164.81 interest and in attorney’s fees this case falls under “property” the rubric and costs. governed by the Due Process Clause. Standard Review of rights What does the Due Process Clause protect? Supreme As the aptly Court so moved for a directed ver point wrote: “The straightforward: dict at the plaintiffs’ close of the evidence provides Due Process Clause and at that certain the close of all the evidence but did rights life, liberty, substantive judgment prop for a move n.o.v. Because — deprived be verdict, except pursuant moved for a directed we —cannot constitutionally to may sufficiency adequate procedures.” examine the of the evi Faulkner, dence. Zervas v. Cleveland Board See 861 F.2d Education v. Louder 823, (5th Cir.1988). mill, 532, 541, 1487, 832 n. 9 But 470 U.S. 105 see Dietz 1493, Gas, Inc., (1985). v. Consolidated Oil & 643 84 L.Ed.2d 494 F.2d Those “consti (5th Cir.1981); tutionally 1088 University Comput adequate procedures” require no ing Lykes-Youngstown Corp., Co. v. 504 tice opportunity and an to be heard. Mul 518, (5th Cir.1974); F.2d 548 lane v. Stockton Central Hanover Bank & Trust Altman, (5th Cir.1970).4 Co., 306, 313, 652, 656-57, v. 432 F.2d 946 70 S.Ct. evidence, just (1950); We consider all the 94 L.Ed. 865 see also Tulsa Profes supporting evidence nonmoving party’s Pope, sional v. 485 Collection Services light 1340, 478, 1344, most favorable to the U.S. 108 S.Ct. L.Ed.2d 99 nonmoving party. (1988). Boeing Ship Co. v. 565 “reasonably Notice must be man, 365, (5th Cir.1969) 411 calculated, circumstances, F.2d 374-375 under all the to (en banc). However, apprise parties because the did pendency interested of the n.o.v., judgment may not move for a opportuni of the them an action afford judgment not reverse and render a in ty present objections.” Mullane, favor their proceeding purposes Many rely for redress. For the Delchamps, of these cases on Inc. v. section, Borkin, Congress applicable Cir.1970) (per this Act of 429 F.2d 418 However, exclusively curiam). to the Delchamps appealing District of Columbia shall in party considered to be a statute of the District of did not move for a directed or a verdict judgment Columbia. n.o.v. 1052 fact property. rivations In the 70 S.Ct. at U.S. 339 in disposed of Supreme Mullane years since and Schurber’s despite Matthias’s this case princi unwaveringly” has “adhered ex- inquiries about repeated Mullane, Mennonite pal announced depri- risk of erroneous high emplifies Adams, U.S. Missions

Board of permits. system 2710-2711, vations 77 L.Ed.2d balancing “interest creates First, City Ordinance sought interest individual and “the State” erroneous high risk Amend by the Fourteenth notify protected to be police officers it instructs Collection Tulsa ment.” cus- Professional owners” “lawful Mul (quoting Services, notify officers to instruct tody. It does not 657). 314, 70 S.Ct. lane, claims colorable persons other ordinance example, the For property. notice and requiring By persons notify officers per- not instruct Clause heard, Due Process the property seize the officers from whom may be ad- whose interests persons mits persons those believe the officers unless decisions by government versely affected Those owners. lawful property’s par- are This those decisions. participate but may not own individuals turn, the number reduces ticipation, have colorable possession by virtue life, liberty, or deprivations erroneous case, of In this property. claims Rutherford, Block v. whom the course, persons (Matthias Schur- J., seized (Marshall, dissent- L.Ed.2d ber) the seized Bordelon, 740 F.2d owned Thibodeaux ing); *6 Cir.1984). such In this 336, (5th 34-31 creates Second, City Ordinance City from prevented would notice because deprivation of erroneous high risk Schur- depriving Matthias erroneously instead but require notification it not property. their “good ber of make to requires officers locate, notify identify, faith effort” Eldridge, 424 U.S. In Mathews not system does owners.” “lawful L.Ed.2d notice, e.g., type require some other be balanced must that the interests listed can- officers publication, when newspaper form what to determine in each inter- with directly persons all notify Clause hearing the Due Process notice property. in the ests requires: will be interest that First, private 34-31 creates Third, City Ordinance second, action; deprivation official affected erroneous high risk of incorporates of an erroneous risk nor establishes it neither procedures through “good faith” interest its satisfying such guidelines value, any, if locating probable used, identifying and and the requirement safe- procedural or substitute allows The ordinance additional owners.”5 “lawful finally, the Government’s has satis- she guards; to decide each officer involved including Nothing the function interest, requirement. good faith fied the burdens and administrative determi- the fiscal officer’s system checks proce- or substitute notify the additional the owner she cannot nation entail. would requirement with colorable notify persons dural need claims. Eldridge, 424 U.S. safeguards such procedural Additional affect a this case procedures persons notify all requiring officers personal private interest: substantial including property, to the colorable claims City Ordinance people. two

belongings of seize officers from whom dep- those of erroneous high risk creates 34-31 actually locates identifies and only if notice she of notifica- specifies the means 5. Section mail) the lawful owner. (in telephone or person, tion However, gives such the officer owner. lawful persons op- would those also serve. The system altogether current portunity to establish their inter- fails to strike a reasonable balance between ests and to recover their before the individual and state interests relevant City disposes of it. Detailed directions Therefore, process. to due City’s sys- identify persons on how to and locate with tem violates the Due Process Clause. guidelines outlining colorable claims and steps necessary satisfy the ordi- The City’s Responsibility the Due “good requirement nance’s faith effort” Process Violations help protect people’s property would also Despite glaring constitutional by curbing interests the officers’ almost policy, defects in its official City argues complete present sys- discretion under the action, random and unauthorized not a Formally reviewing tem. officers’ deci- custom, ordinance or erroneously de disposing sions actions before prived of their safeguard also would individuals’ Therefore, argues City, it should not be

property interests far more cur- than the liable for the harm Matthias and Schurber system.6 person rent A third can deter- suffered. sincerely mine whether each officer at-

tempted notify persons all with colorable Dept. Monell v. Social Services property. Finally, claims to the if the City of N.Y., persons notify cannot with colorable claims (1978),permits plaintiffs L.Ed.2d 611 to sue because it does not know governments under Section 1983 for the so, where to reach them and has tried to do governments harms through cause attempt then the can at least to safe- statutes, policies, or customs when: guard by publishing those interests alleged the action that is to be unconsti- newspapers likely most read implements tutional policy executes a people having claims in the Pro- statement, ordinance, regulation, or deci- notice, viding some sort of constructive officially adopted promulgated sion newspaper publication, such as will better Moreover, body’s officers. al- protect property present interests than the though the touchstone of the Section system of no notification at all. These *7 against government body 1983 action is procedural safeguards allowing per- more allegation policy that official re- is are, protect sons to interests sponsible deprivation rights pro- for a of course, of valuable. Constitution, by tected the govern- local procedural safeguards These additional ments, every like other Section 1983 impose only would a minimal administra- “person,” by very the terms of the stat- cases, many tive burden. as ute, may depri- for be sued constitutional already the officers have the names pursuant governmental vations visited persons and the addresses of the though “custom” even such a custom has whom seized the The offi- approval through received formal the easily cers could have ascertained the iden- body’s decisionmaking official channels. tity of the owners “the exer- Harlan, writing As Justice for the [] responsible cise of state actor’s reason- Court, said in Adickes v. S.H. Kress & ably diligent Engine efforts.” Small Co., 167-168 [90 Cascio, (5th Shop v. 878 F.2d 1613-14, (1970): 26 L.Ed.2d “Con- 142] Cir.1989) (citing Board, Mennonite gress usages included customs and [in 2712). They U.S. at at need persistent Section because of the 1983] only check their own records. widespread discriminatory practices and officials_ City any governmental has not listed Although of state not au- system law, interests its current serves that a practices thorized written such of meaningful procedure notification could not permanent state officials could well sobe police department Property 6. The Disposition Property now has someone in Form before the Supply sign Supply disposes & Division off on each & Division as policy official they execute unless a ‘cus- constitute toas settled and well defined. above law.” of the force usage’ with or tom Slidell, 735 City Bennett also of Monell, 436 U.S. banc) (en (per Cir.1984) (5th 861, 862 F.2d footnotes and citations (parallel 2035-2036 curiam). omitted). challenge the constitution- mu Monell interpreted circuit This police and City Ordinance ality of City in Webster liability standard nicipal prevail- Under practices. department Cir. Houston, F.2d of stan- Circuit and Fifth Supreme ing curiam): banc) (en (per 1984) ordinance above, both discussed dards adjudica- consistency in promote To constitute department custom police and and persons injured rights tion of clearly is City for which policy City municipalities, inhabitants responsible. follow- agreed on has en banc court con- doubt, City ordinance Without imposition govern ing formulation City is for policy which stitutes liability: municipal responsible is Therefore, the liable. Section liable is municipality A ordi- defects the constitutional pro- rights wide- Likewise, persistent, nance. federal or Constitution by the tected practices longstanding spread, to offi- pursuant is inflicted that laws which policy constitute officers policy. cial reduce practices These responsible. is policy is: no- Official possibility increase than rather notify persons failure They include ordinance, tice. statement, A policy 1. claims colorable offi- that or decision regulation, owners” “lawful notification attempting promulgated adopted cially Uncon- twice, at all.” maybe not “once lawmaking offi- municipality’s amply record testimony in the tradicted to whom by an official cers practices these conclusion supports policy- delegated lawmakers settled well “so common are authority; or making represents fairly custom constitute practice widespread persistent, A2. Webster, F.2d municipal policy.” which, employees, city officials widespread, persistent, Given official authorized although not practices, of these nature longstanding policy, is promulgated adopted chief easily could find jury as to settled well common so about constructively knew actually or repre- fairly a custom constitute responsibili- full delegated them. *8 policy. Actual municipal sents of ty disposing cus- of such knowledge constructive chief.7,8 Therefore, bears gov- attributable must tom practices these responsibility municipality body of the erning policy.” municipal represent “fairly body has to whom official an Id. authority. policymaking delegated clearly holds though Monell Even employees a of officers Actions here, the caused harms for the City liable mu- not render do municipality 451 Taylor, Parratt argues that 1983 under Section liable nicipality 77-561; 35-15.1; No. Ord. Section Code of abandoned Disposal 34-30. Section 3, 3-16-77. Section police. chief authorized, hereby police is chief The Smith, 676 Refugee Center Haitian also 8. See Ordi- [in hereinbelow described manner (balanced Cir.1982) 1023, 1029-1040 F.2d 34-31], dispose all abandoned nance and found Eldridge factors possession has been property which they re- process than constitutionally more due not less period of a department for ceived). (90) days. ninety than U.S. 68 L.Ed.2d 420 should be limited pro- to the tort remedies liability insulates it from in this case vided state respond- statute. The Court random, (the because a unauthorized act ed: complete properly failure to a argument This Parratt’s misses point. Form) Disposition caused the in Parratt, In emphasized the Court that it juries. We wrong believe the cites the dealing was with “a tortious loss of ... Co., Logan v. Zimmerman Brush case. property as a result of a random and 422, 102 S.Ct. L.Ed.2d 265 employee unauthorized act a state ... Parratt, applies not here. not a result of some established state Parratt, In prisoner alleged a procedure.” Parratt, government process rights violated his due Here, contrast, S.Ct. at it [101 1916]. by negligently losing hobby a kit he had system is state itself destroys a ordered. In such a the Court rea- complainant’s interest, by oper- soned, predict the state could not when the law, ation of whenever the Commission occur; loss would could not control timely fails to a convene conference— loss; activity causing random and could whether the Commission’s action is provide meaningful predeprivation a though negligence, taken malicious- Parratt, hearing. 451 U.S. at ness, or otherwise. Parratt was not de- result, S.Ct. at 1916. As a the Court con- id,., signed to reach a situation. such cluded, adequate postdeprivation reme- (second at 545 S.Ct. at concur- [101 1918] dy negligent deprivation ring opinion). complainant Unlike the satisfies the Due Process Clause.9 Parratt, Logan challenging not the In Logan, (Lo- discharged employee error, Commission’s but “established gan) charge filed an unlawful termination procedure” state that destroys en- his Employment

with the Illinois Fair Practices according titlement without proper him Commission. The Commission inadvertent- procedural safeguards. ly required hearing failed to schedule Logan, period. within the allotted time Illinois 455 U.S. at 102 S.Ct. at Supreme deprived Court held that the error (parallel omitted) (em- citations Logan of Supreme his cause of action. The added). Logan phasis Court contin- disagreed. The Court focused on the ued: claim-processing system entire to deter- event, sug- the Court’s decisions complied mine whether it with constitution- that, gest necessity quick “the absent requirements procedure. al of fair impracticality action or the State Court held that a state “may finally providing any predeprivation process,” destroy employee’s interest [the postdeprivation hearing here would be right procedures] to use the Commission constitutionally inadequate. giving putative without first owner an present his claim of entitle- Logan, at 1158 Logan, ment.” 455 U.S. at Parratt, citing 451 U.S. at 1914-1915, Memphis Light, Gas & Water *9 1, 19-20, Craft, Div. v. 436 U.S. 98 S.Ct. Company, employ- Zimmerman Brush 1554, 1565-1566, (1978); L.Ed.2d 56 30 er, argued Logan complained that of essen- Regents Colleges Board v. State negligent depriva- tially type the same of of Roth, 564, 570, 7, 2701, Parratt as that found in tion therefore 408 U.S. n. 92 S.Ct. Williams, 327, 330-331, 344, 668, (1986), 9. In Daniels v. 474 U.S. 106 S.Ct. 88 L.Ed.2d 677 662, 664-665, (1986) Daniels, 106 S.Ct. L.Ed.2d 662 88 companion case to the Court held that part the Court overruled of Parratt. The Court prison protect prisoner official’s failure to negligent "depriva- held that the conduct is not negligent and from assault was did not amount tion" therefore cannot be the basis for a due process to a due violation. Cannon, process claim. In Davidson v. 474 U.S. 1056 pro predeprivation provide (1972); Bell v. State could 548 7, 2705, 33 L.Ed.2d n. Plan Regional Co. Williamson 1586, 542, cess.” 535, 91 S.Ct.

Burson, U.S. 402 172, 195 Bank, 473 U.S. ning v. v. Hamilton Con Boddie (1971); 1591, 90 L.Ed.2d 29 14, L.Ed.2d 3108, n. 87 780, 3121 14, 105 379, S.Ct. 91 S.Ct. n. necticut, 401 U.S. omitted). (citations (1971); (1985) and com 113 126 786-787, 28 L.Ed.2d Barchi, 443 U.S. Barry v. paring Par re-emphasized Recently, the Court (1979) 365 2649, 61 L.Ed.2d 99 S.Ct. In Zinermon scope. ratt ’s restricted 343-347, 96 S.Ct. at Eldridge, 424 U.S. — 975, 108 -, S.Ct. Burch, U.S. true “particularly is This at 907-909. petition sued the Burch L.Ed.2d post-termi only here, the State’s where, as rights. process his due violating ers an form of comes process nation a mental Burch to petitioners admitted The Logan, 455 U.S. action.” tort independent even “voluntary patient” as a hospital omitted). (footnote at 1158 436, 102 S.Ct. at consent knowingly though could Burch 517, 534, Palmer, 468 U.S. In Hudson not initi did petitioners admission. (1984) L.Ed.2d proce placement involuntary the state’s ate acts), the to intentional (extending Parratt knowingly incapable persons dure in- “controlling characterized Court procedure That consenting to admission. “solely whether Parratt quiry” safeguards. constitutional provided provide position in a is the state (1) apply Parratt because refused Court reit- The Court process.” predeprivation depriva predict could petitioners rationale underlying erated that “[t]he provide could (2) petitioners tion; deprivations that when Parratt peti hearing; and predeprivation un- through random effected are because were authorized actions tioners’ employee, a state conduct authorized petitioners to the delegated state ‘im- simply are procedures predeprivation initiate patients admit power to cannot know the state since practicable’ The Court safeguards. procedural state’s occur.” Hud- will deprivations when such excep not an Parratt “is that emphasized at 3203. 533, 104 S.Ct. son, at balancing test but Mathews tion Logan: that test application reviewed then rather the variables one of in which case unusual about question decided Logan, pre- value equation in the Mathews —the left little Parratt decision our which negligible safeguards deprivation —is postdeprivation is, doubt, whether that at is deprivation kind of preventing process where due remedy satisfies state — -, Zinermon, at sue.” pur- is effected those applies at 985. Parratt S.Ct. procedure. state to an established suant cases. not. it does that We held clear, of Zinermon makes review

Hudson, 468 U.S. at As our did not than Logan Logan rather falls under concluded The Court “[Respondent First, Schurber Matthias and apply Hudson Parratt. de- asserted allege permits system that City’s even challenge does not pursuant occurred of his without struction people’s disposition Hudson, procedure.” allege to a state They at all. any notification “occurred disposition of ordi- procedure [City] to a [the pursuant reemphasized Hudson, the Court After department custom].” nance Lo- extend Parratt Hudson, 468 U.S. at deprivation of “in which cases gan-type *10 435-436, 102 S.Ct. Logan, 455 U.S. at to an estab- pursuant is effected complain about They do 1157-1158. the procedure, policy lished state feasibly provide predepri- that state cannot process the properly failure to the Zinermon, procedural safeguards. vation Instead, Disposition Form. See id. — 975; Augustine, -, 110 S.Ct. procedure’ challenge state “the ‘established As in Zinermon 740 F.2d at 329. without destroys entitlement that [their] Augustine, easily provide the could proper procedural safe- according [them] hearing here. notice and predeprivation Seale, Delahoussaye v. F.2d guards.” (quoting Lo- Cir.1986) (5th 1091, 1094-1095 Findeisen, In 749 F.2d at we 1154) gan, 455 U.S. at (Fin- a schoolteacher’s found that tenured (rejects applying Parratt the ran- deisen’s) discharge alleged constructive employ- of state and unauthorized acts dom type property depri- set forth the claim deprivation). did not cause ees hear- requires a predeprivation vation requires predeprivation ing. process Due a Second, easily provide the can (1) pretermination hear- hearing because a heard that opportunity notice necessary the state’s statu- ing is to assure depriv requires Process Clause Due before followed; (2) the dis- tory guidelines are Zin See their ing individuals of professional charge affects Findeisen’s — ermon, 975; Wil U.S. -, livelihood; (3) necessity standing no Co., liamson n. 473 U.S. at exists; (4) an hasty action absent quick necessity No n. 14. S.Ct. at easily can hold a emergency, a school board Logan, exists. See action hearing meaningful predeprivation to government can When a S.Ct. at 1158. discharge a ten- erly whether consider hearing, the avail predeprivation provide a Findeisen, 749 F.2d at 239. teacher. ured remedy tort postdeprivation ability of a affected the City’s actions In Process Clause. satisfy the Due no necessi- possessions, plaintiffs’ personal — Zinermon, 975; -, exists, can hasty action and the ty for Doe, v. Augustine postdeprivation 327-328 easily meaningful 740 F.2d a hold only hearing.10 Parratt Cir.1984). (5th applies Gamble, (quoting hand, dis- F.2d at 1262 postde- ment.” held that we have On the other 16). opinion at trict court’s memorandum satisfy process. For ex- privation due remedies Telephone Bell (1986) Webb, also Hatteras Co., Southwestern F.2d 1258 ample, in Gamble Cir.1985) (no 774 F.2d ), postdeprivation reme- (per curiam we found though property es- process violation even Gamble, due racing commis- dy satisfactory. In business, plaintiffs because of sential to the discrepancy that it found notified Gamble sion protect- weight government’s interest in racing gave application. The stewards in his " activity). citizenry ing ongoing criminal its 'opportunity present his side of him an Gamble, F.2d story’ suspension." before weigh the if we We reach a different answer suspended temporarily They then Gamble, the Like in this case. Gamble factors hearing pending with- racing license Gamble’s a substantial interest plaintiffs here have following weighed eight days. We temporary sus- property. But unlike interest in his plaintiff’s substantial Gamble, factors: perma- in this case pension sale license; temporary nature of property, horse owner’s plaintiffs of their nently deprived the (effective hearing only pending suspension replaced. Gam- Unlike which cannot be much eight days after ble, was available in this air. of thin disposition did come out suspension, three and within the date it intended told the never suspen- request); days the fact that Gamble's did it them dispose nor of their air; story. low risk of thin present not come out their side of sion did error; Gamble, governmental consider- governmental the State’s error the risk of Unlike maintaining integrity aptly illustrates. high so interest this case able here is —as Gamble, agreed racing finally, with the state has not We in Louisiana. And unlike horse by its "when the own- interest served substantial court's conclusion advanced district against system. the need is balanced current er’s interest postdeprivation racing, Delahoussaye, integrity the swift- held horse maintain (1) determination, process because due remedies satisfied administrative ness of the quickly pro- reliability, needed to seize warehouse the informal state indicia farmers; (2) received, wellbeing pre-hearing economic sus- tect the plaintiff ... a which temporary; the seizure deprivation was appearance the stew- pension pending before substantially interfere appear to did not Amend- Fourteenth does not violate the ards

105 City from protects the lieve that Parratt only post-termi- Third, plaintiffs’ and Schurber give Matthias its failure independent in an process comes nation heard be- to be opportunity notice and an at 455 U.S. Logan, legal action. See property. We have disposing of fore the rationale of Finally, 1158. 102 S.Ct. at City’s other com- carefully the reviewed anticipate (that the state cannot Parratt Therefore, find none. plaints of error actions) does not unauthorized random and AFFIRM. comply challenged actions apply when Hudson, City policy. Therefore, post- a at 3203-3204. JONES, Judge, Circuit H. EDITH Parratt does deprivation proceeding concurring: specially liability for its not shield I not find colleagues, do my Unlike of no- plaintiffs deprived policies that blatantly viola- regulations city applicable heard. to be opportunity tice and an I nor am confident process, tive of due systemic fact, In this involves custom that municipal proved a plaintiffs proble- constitutionally more problem far regula- essentially ignoring consists Logan, had Logan. than that matic give to lawful failing to tions correctly and no error system worked I police. seized owners occurred, actions would the Commission’s however, concur, solely constrained am But Clause. the Due Process not violate recent Supreme I Court’s read strictly employee — here, every City if even Burch, decision Zinermon pro- City’s system for complies with L.Ed.2d 100 -, (as did with it cessing property, seized take a hard look holding we must 5-518-1) itself still bla- system batch proper- liberty or deprivations accidental Due Process Clause. tantly violates proce- whether additional determine ty to could not Thus, Logan system if the have alleviated safeguards would dural muster, City’s system pass process due prescrip- Although majority’s problem. cannot. certainly here “safeguarding” far in go tions too not in most will who cases rights of those fully not did We understand I of seized lawful owners it dis- procedures its comply with adjustments of minor agree some batch 5-539-7 property in posed of the protected would city’s regulations Never- authorization. an officer’s without Bingley. Under property of Matthias convert Lo- theless, does not error therefore, they are entitled Zinermon, case. case to a Parratt gan recover. City’s customs challenge the ordinance no- without disposal permitting time, City’s hearing

tice or a 5-539-7. The batch processing

error excuse processing error does

City’s failing to liability for its

City from In- heard.

notice and how in- merely

stead, illustrates error proce- City’s ordinances

adequately the inter- individuals' protect

dures — -, Zinermon, ests. See Supreme our review of

Based on we do not be- precedent, Circuit

and Fifth exists, permanent, it was action operations; and the state the warehouse’s lives, substantially interfered with the hearing required postdeprivation with- statute provide postdeprivation Delahoussaye, does not and the days suspension. in ten hearing. quick Here need no 788 F.2d