WOOD v. MORBARK INDUSTRIES, INC.
United States Court of Appeals, Eleventh Circuit.
70 F.3d 1201
Morbark argues that, even if the district court did err in giving this instruction to the jury, Wood has no standing to raise an objection to it on appeal because her counsel did not object to the instruction at the time it was given. First, we note that the court‘s admonition to the jury was not a part of the formal jury instructions, but, nevertheless, had the same weight as a formal instruction. Second, we find that, although Wood‘s counsel did not object in the presence of the jury, he did question the court‘s instruction at the conclusion of Morbark‘s case, after the jury was excused. At that time, Wood‘s counsel attempted to argue that Morbark‘s counsel had opened the door. The district court told Wood‘s counsel that he was attempting to continue “well beyond” the limited rebuttal testimony the court would allow. R5-142-180. This colloquy between the district court and Wood‘s counsel indicates to us that Wood did not waive her objection to the court‘s instruction. Nevertheless, even if we determined that Wood did not object to the district court‘s direction, we will depart from the rule of waiver when the district court‘s instruction amounts to plain error or results in a miscarriage of justice. Osterneck v. E.T. Barwick Indus., Inc., 825 F.2d 1521, 1533 (11th Cir.1987), aff‘d sub nom. Osterneck v. Ernst & Whinney, 489 U.S. 169, 109 S.Ct. 987, 103 L.Ed.2d 146 (1989).5
III. CONCLUSION
Because Rule 407 applies to bar the evidence of design change in strict products liability cases, we do not find that the trial court erred in its original ruling excluding evidence of Morbark‘s use of longer infeed chutes after the accident at issue. After a careful review of the testimony, however, we are persuaded that the posture of the defense and the manner in which the evidence developed at trial required that, under Rule 407, evidence of the design change be permitted for purposes of impeachment. We REVERSE and REMAND for a new trial.
MORLEY‘S AUTO BODY, INC., a Florida Corporation, d/b/a Morley‘s Towing; Morris Solow; David Solow, d/b/a Dave‘s Towing; Kenneth Solow, Plaintiffs-Appellees, Cross-Appellants, v. Don HUNTER, individually, and in his official capacity as Sheriff of Collier County; L. Wayne Graham, individually, and in his capacity as a Captain in the Collier County Sheriff‘s Office, Defendants-Appellants, Cross-Appellees, Collier County; Collier County Sheriff‘s Office; John Doe, 1-10, Defendants.
No. 94-3158.
United States Court of Appeals, Eleventh Circuit.
Dec. 18, 1995.
Victoria E. Felden, Naples, FL, Michael P. McGovern, Ayres & Parkey, Knoxville, TN, for appellees.
Before ANDERSON and CARNES, Circuit Judges, and OWENS*, District Judge.
CARNES, Circuit Judge:
Collier County Sheriff Don Hunter and Captain L. Wayne Graham appeal from a judgment entered against them in their official capacities. That judgment followed a jury trial and was entered in favor of plaintiffs Morley‘s Auto Body, Inc., and David Solow, d/b/a Dave‘s Towing. The main question presented in this
Additionally, this case involves the cross-appeal of the individual plaintiff David Solow. Solow, who claimed that Captain Graham violated his right under the Fourth and Fourteenth Amendments to be free of unreasonable seizure, appeals from the judgment entered by the district court after it granted a defense motion for a directed verdict. Because the record does not sufficiently link Captain Graham to the arrest related to this claim, we will affirm the district court‘s judgment as to it.
I. FACTS AND PROCEDURAL HISTORY
County sheriffs’ offices and other law enforcement agencies that are called to the scene of automobile accidents and breakdowns regularly summon wreckers to tow away disabled vehicles. These calls or referrals are an important source of business for wrecker service companies. The Collier County Sheriff‘s Office, like many law enforcement agencies, maintains a “rotation list” of local private wrecker service companies that it calls on a rotating basis when wrecker services are required.
In October 1990, Sheriff Graham issued a document entitled the “Collier County Sheriff‘s Office Wrecker Service Policy.” The twelve-page typewritten policy specifies the various equipment and operating standards for wrecker service providers seeking to be placed on the rotation list, sets up an application process, and spells out the operational details of the rotation system. The policy also requires that wrecker services on the rotation list comply with the terms it specifies in order to remain on the list. The provisions of the policy are quite detailed.
The plaintiffs are two wrecker service businesses and their operators in Collier County. Both wrecker services formerly received referral business from the Collier County Sheriff‘s Office through participation in the rotation call system. Due to various incidents involving their operators and employees, both of the wrecker services were removed from the rotation list.1 The plain-
After being removed from the list, the plaintiffs commenced this lawsuit under
II. DUE PROCESS CLAIM
A. THE ISSUE
Resolution of the due process claim depends on the answer to a single question: Did the plaintiffs have a constitutionally protected property interest in remaining on the rotation list? “In assessing a claim based on an alleged denial of procedural due process a court must first decide whether the complaining party has been deprived of a constitutionally protected liberty or property interest. Absent such a deprivation, there can be no denial of due process.” Economic Dev. Corp. v. Stierheim, 782 F.2d 952, 954-55 (11th Cir.1986). It is undisputed that the plaintiffs received no notice or opportunity for a hearing prior to being removed from the rotation call list. Therefore, as the defendants concede, if the plaintiffs had a constitutionally protected property interest in remaining on the rotation list, they were deprived of that interest without due process of law.
The crux of the plaintiffs’ argument is that the “mutually explicit understandings of the parties,” taken together with the written policy, gave rise to a property interest under the principles outlined in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). The defendants argue that the plaintiffs misconstrue the principles of Roth, at least as clarified by the Supreme Court‘s subsequent decision in Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976). Relying on Bishop and decisions of this Court that address the creation of property rights, the defendants argue that such property rights must be determined by reference to state law, and that Florida law recognizes no property interest under the circumstances of this case. Accordingly, the defendants contend that the district court committed reversible error by failing to hold, as a matter of law, that no such interest existed and by denying their summary judgment and directed verdict motions on this claim. We agree.3
B. STANDARD OF REVIEW
“State law defines the parameters of a plaintiff‘s property interest for section 1983 purposes,” Mackenzie v. City of Rockledge, 920 F.2d 1554, 1559 (11th Cir.1991), and “[w]hether state law has created a property interest is a legal question for the court to decide.” Id. (quoting Marine One, Inc. v. Manatee County, 877 F.2d 892, 894 (11th Cir.1989)). Questions of law are subject to de novo review by this Court. E.g., Swint v. City of Wadley, Ala., 51 F.3d 988, 994 (11th Cir.1995).
In Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), the Supreme Court discussed the basic principles governing the existence of property interests subject to procedural due process protections: “To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Id. at 577, 92 S.Ct. at 2709. The Court further explained how such a claim of entitlement may be created: “Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law....” Id.
In Perry v. Sindermann, a companion case to Roth, the Supreme Court reiterated the conceptual basis for the creation of property rights: “A person‘s interest in a benefit is a ‘property’ interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit....” 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972). The plaintiffs point to the phrase “mutually explicit understandings” as support for their argument that their relationship with the Collier County Sheriff‘s Office creates a cognizable property interest, even in the absence of a contract with that office, and even in the absence of any supporting Florida statute, regulation, court decision, or any other source of Florida law creating the entitlement. The plaintiffs’ argument fails, however, because it disregards the post-Roth teachings of the Supreme Court, and it is inconsistent with the law of this Circuit regarding the creation of constitutionally protected property interests.
After Roth and Perry, the Supreme Court clarified the relationship between state law and the creation of property interests, holding that “the sufficiency of the claim of entitlement must be decided by reference to state law.” Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976) (policeman had no property interest in his continued public employment because North Carolina law did not act to create such an interest); see also Logan v. Zimmerman Brush Co., 455 U.S. 422, 430, 102 S.Ct. 1148, 1155, 71 L.Ed.2d 265 (1982) (“The hallmark of property ... is an individual entitlement grounded in state law, which cannot be removed except ‘for cause.’ “) (emphasis added).
This Court has consistently applied the teachings of Bishop in the context of due process deprivation claims by looking to state law to determine whether a property interest has been created. See Warren v. Crawford, 927 F.2d 559, 562-64 (11th Cir.1991) (applying Georgia law to the question of whether the plaintiff in a wrongful discharge case had property interest in his county job and observing that even a “mutual understanding” cannot create a property interest contrary to state law); Mackenzie, 920 F.2d at 1559 (holding that plaintiff had no property interest in a building permit because Florida law creates no such interest); Marine One, 877 F.2d at 894 (same); Shahawy v. Harrison, 875 F.2d 1529, 1532 (11th Cir.1989) (relying on Florida statutory law in holding that physician had a property interest in the continuation of his medical staff privileges); Schneider v. Indian River Community College Found., 875 F.2d 1537, 1544 (11th Cir.1989) (examining Florida statutory law and holding that plaintiffs in wrongful discharge case had no property interest in their continued employment at a community college radio station); Whitfield v. Finn, 731 F.2d 1506, 1508 (11th Cir.1984) (applying Alabama law in determining that discharged city police officer had no property interest in his job); cf. Lassiter v. Alabama A & M Univ., 28 F.3d 1146, 1148-52 (11th Cir.1994) (en banc) (looking to Alabama law in holding that state university officials were entitled to qualified immunity in wrongful discharge case because it was not clearly established that university vice president had a property interest under state law in continued employment).
The decision in Bishop and this Court‘s precedents make clear that, if the plaintiffs in this case had a protected property interest in remaining on the wrecker rotation list in
Instead, the plaintiffs rely on the sheriff‘s wrecker rotation policy itself for the creation of the alleged property right. Their reliance is misplaced, because there is no Florida state law authority that elevates that policy to the status of a regulation with the force of law.4 The policy was issued in the sole discretion of the Collier County Sheriff and no state agency with statutory authority to do so has authorized the sheriff to create the entitlement the plaintiffs urge us to recognize. Because any expectations arising from the wrecker rotation policy of a county sheriff are not grounded in Florida law, such a policy does not give rise to a constitutionally protected property interest.
The plaintiffs rely on
Although not binding precedent in this Court, Piecknick v. Commonwealth of Pennsylvania, 36 F.3d 1250 (3rd Cir.1994), informs our analysis of the wrecker rotation policy at issue in this case. In Piecknick, the Pennsylvania State Police created and distributed a wrecker service policy designed to allocate wrecker service referral calls within Washington County. Id. at 1253. A key issue in the case was whether the policy itself created a constitutionally protected property interest. As here, the policy at issue had not been specifically authorized by, or codified in, any state statute or regulation, nor had it been approved by any state agency with authority to do so. Id. at 1258. These factors prompted the Piecknick Court to conclude: “The guideline at issue here is not a regulation having the force of law.... Accordingly, Piecknick has not alleged any property interest entitled to protection under the Due Process Clause of the Fourteenth Amendment.” Id. at 1259. We find persuasive the analysis of the Third Circuit in Piecknick and we likewise reject the argument that the policy involved in this case could, in and of itself, create a property right under Florida law.
D. DURHAM v. JONES
The preceding analysis illuminates the futility of the plaintiffs’ efforts to distinguish Durham v. Jones, 698 F.2d 1179 (11th Cir.1983), this circuit‘s only precedent addressing
The plaintiffs point to two facts in an attempt to distinguish this case from Durham: (1) a written policy is involved in this case, and (2) unlike the Durham plaintiff, the plaintiffs in this case have already received the benefits of wrecker service referrals. Yet these factual distinctions can lead to no difference in the result unless they operate to create a constitutionally protected property interest where there would otherwise be none. As to the first factual distinction, we know of no authority for the proposition that the act of reducing a wrecker rotation policy to writing can create a legally enforceable entitlement. There is no statute of frauds doctrine in procedural due process law. As a matter of logic, it does not follow from the fact that no written policy was involved in the Durham case where no property interest was found, that the presence of a written policy would create such an interest. As to the second factual distinction, it is axiomatic that the mere receipt of a benefit from the government does not automatically create an entitlement to that benefit. Therefore, the factual distinctions urged by the plaintiffs do not persuade us to reach a result different from that in Durham.
E. “WRECKER ROTATION” CASE LAW IN OTHER CIRCUITS
Our holding in Durham, and our holding in this case, is consistent with the law of other circuits that have considered the issue of property rights in the context of wrecker rotation lists. The Second, Third, Fourth, Fifth, Seventh, and Tenth Circuits have addressed this issue. The general principle that emerges from all of the decisions is that: Where a court has found a property interest in remaining on a rotation list, the plaintiff has alleged a claim of entitlement supported or created by a formal and settled source such as a state statute or regulatory scheme. Absent such an entitlement grounded in state law, courts have not found a protected property interest in remaining on a wrecker rotation list. Blackburn v. Marshall, 42 F.3d 925, 938 (5th Cir.1995). To illustrate the application of this principle, and to illuminate our own analysis, we review briefly the cases from each of these circuits.
In the most recent case of this series, the Seventh Circuit considered whether a wrecker service company had a property interest in remaining on a city rotation list. O‘Hare Truck Serv., Inc. v. City of Northlake, 47 F.3d 883 (7th Cir.1995). The wrecker service company in O‘Hare claimed that the City of Northlake violated its procedural due process rights when the city removed it from the rotation list without providing an opportunity for a hearing. Id. at 884. Although no statute or ordinance governed the rotation system, the company argued nonetheless that it had a protected property interest in remaining on the list. The court rejected that argument stating, “We have, of course, found property interests arising from internal rules or regulations, but only when they have the force of law.” Id. at 886. Finding no Illinois authority supporting the conclusion that Northlake‘s policy and practice concerning the rotation list had the force of law, the Seventh Circuit held that the wrecker service company had no property interest in remaining on the list. Id.
As noted previously, the Fifth Circuit articulated the general principle governing these cases in Blackburn v. Marshall, 42 F.3d at 938, another case in which the plaintiff claimed a property interest in remaining on a local law enforcement agency‘s wrecker rotation list. The Blackburn Court drew from Roth, Perry, Bishop, Logan, and applicable Fifth Circuit decisions the principle that constitutionally protected property interests must be grounded in state law. Applying that principle to the facts, the court concluded, “Because there apparently is no Texas or local statute, ordinance, or regulatory scheme governing the wrecker list ... we hold that Blackburn has failed to allege a
The Third Circuit applied the same principle in Piecknick, 36 F.3d at 1257-59. Distinguishing wrecker rotation cases in which a property interest had been found, the court stated: “These cases are distinguishable. In all of them, a state statute or regulation gave a towing operator a property interest. Here, there is no Pennsylvania statute or regulation governing towing or wrecker services.” Id. at 1257 (footnote omitted). The court also considered and rejected, as we do, the contention that the applicable wrecker service policy at issue could, of itself, create a protected property interest. Id. at 1259. Concluding that that policy was “not a regulation having the force of law” and noting the absence of “any other governing state law or regulation” to support the asserted entitlement, the court held that the plaintiff failed to establish a property interest protected by the Fourteenth Amendment. Id.
The Second Circuit considered whether a wrecker referral system created a property right in White Plains Towing Corp. v. Patterson, 991 F.2d 1049 (2d Cir.), cert. denied, 510 U.S. 865, 114 S.Ct. 185, 126 L.Ed.2d 144 (1993). In that case, the state police divided a section of a state highway into three zones, assigning exclusive towing referral rights to a single wrecker service within each zone. Under the system, the dispatcher called the assigned wrecker unless the disabled motorist requested a different wrecker service. The plaintiff brought a section 1983 due process claim when his exclusive zone assignment was terminated. The Second Circuit emphasized that the wrecker assignment system was not authorized by or codified in any New York statute or regulation and held that “regardless of their unilateral hopes or expectations, plaintiffs had no cognizable property interest in continued towing referrals ... and the mere termination of their status thus did not deprive them of a due-process-protected interest.” Id. at 1062.
Applying the same principle in a different state law context, the Fourth Circuit has recognized that a wrecker service company has a constitutionally protected property interest in remaining on a rotation list when state regulations require maintenance of the list for the stated purpose of providing companies with an equal opportunity to obtain the referral business. Pritchett v. Alford, 973 F.2d 307 (4th Cir.1992). That case involved a section 1983 due process claim brought by a wrecker service company that had been removed from a rotation list. The rotation list was governed by extensive state regulations that “required every highway patrol district to establish wrecker zones and ‘wrecker-rotation’ lists for the zones ... to ensure that all wrecker services on the list have an equal opportunity to the towing business arising from the rotation list.” Id. at 317. As the court explained, “Being on [the list] by virtue of this state regulatory regime insured that it was a legally enforceable entitlement....” Id. (emphasis added). As we have noted, no such state regulatory regime is present in this case.
Likewise, the Tenth Circuit has recognized a protected property interest in continued wrecker referrals when the referral system was directly governed by a state wrecker statute mandating that referrals be made on an equal basis. Abercrombie v. City of Catoosa, 896 F.2d 1228 (10th Cir.1990). The plaintiff in Abercrombie brought a section 1983 due process claim after he was removed from a city‘s wrecker rotation list. To support his claim of entitlement, the plaintiff relied on the state wrecker statute, which required the city “to make wrecker referrals on an equal basis as nearly as possible” to licensed wreckers in or near the city limits. Id. at 1232. Closely examining the applicable statute, the court concluded that it “created a property interest in wrecker referrals in favor of the plaintiff.” Id. As previously explained, no analogous Florida statute operates to create a property interest in this case.
In summary, every circuit to date that has considered the creation of property interests in the context of wrecker rotation lists has reached a decision in harmony with the principle recently distilled by the Fifth Circuit in Blackburn: The existence of a property right in such a case turns on whether the alleged claim of entitlement is supported or created by state law such as a state
Because the plaintiffs have not, and apparently cannot, point to any Florida statute, state administrative regulation, or any other source of Florida law that provides the asserted entitlement in remaining on the wrecker rotation list, we hold that they have failed to allege a property interest protected by the Due Process Clause of the Fourteenth Amendment. Accordingly, the judgment of the district court must be reversed with respect to the plaintiffs’ claims arising from their removal from the list.5
III. UNREASONABLE SEIZURE CLAIM
David Solow‘s cross-appeal of the district court‘s decision to grant Captain Graham‘s directed verdict motion on the unreasonable seizure claim need not detain us long. Solow‘s claim arises from a dispute he had at the scene of an automobile accident with Collier County Deputy Sheriff Charles Campbell, who is not a defendant in this case. When Deputy Campbell arrived at the scene, Solow had already loaded the wrecked vehicle for towing. Deputy Campbell in-formed Solow that the vehicle would need to be unloaded to facilitate the investigation. Solow became upset at the prospect of losing the towing job, but unloaded the vehicle when Deputy Campbell directed him to do so. Subsequently, Deputy Campbell completed an affidavit seeking Solow‘s arrest. The warrant issued and Solow was arrested on a charge of tampering with evidence in violation of
At the close of the plaintiffs’ proof in this case, the district court granted Captain Graham‘s motion for a directed verdict on the unreasonable seizure claim on the basis that probable cause existed to support the arrest. In ruling on this motion, and in response to argument from Solow‘s attorney, the court stated: “I think you‘re wrong, counsel. Once a warrant has been issued, at least in this circuit, that is probable cause. It‘s absolute probable cause as far as I know about it. I don‘t see how you can get around it.” The district court was mistaken, because the issuance of a warrant cannot transform an unconstitutional arrest into a constitutional one, nor can it insulate from liability an officer who obtains the warrant. E.g., Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89
The record shows no such connection. Deputy Campbell testified that his supervisor, Sergeant Greve, directed him to take information to the State Attorney‘s Office to determine whether there was sufficient evidence for prosecution. It is undisputed that after consultation with an Assistant State Attorney, Deputy Campbell completed and signed the affidavit seeking Solow‘s arrest. Although the testimony of Captain Graham is somewhat ambiguous on this point, it appears from the testimony that the extent of his involvement in the matter was limited to reviewing the facts with Deputy Campbell, telling him to proceed with the investigation and to take his findings to the State Attorney‘s Office, and discussing the incident with in-house counsel at the Collier County Sheriff‘s Office.
Because Solow failed to offer sufficient evidence to present a jury issue on whether Captain Graham caused Deputy Campbell to obtain the warrant, we affirm the trial court‘s decision to direct a verdict in Graham‘s favor on this claim.6
IV. CONCLUSION
For the foregoing reasons, the judgment of the district court respecting the removal of the plaintiffs from the wrecker rotation list is REVERSED, the judgment of the district court with respect to David Solow‘s unreasonable seizure claim is AFFIRMED, and the case is REMANDED for entry of a judgment in favor of the defendants on all claims.