The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD MATHIS, Special
Administrator of the Estate of Joe
Robinson Mathis and as Trustee of
the Joe Robinson Mathis and
Eleanor Margherite Mathis Trust,
AKA Joe R. Mathis; JAMES
MATHIS, individually; ANTHONY No. 08-17302
MATHIS, individually,
D.C. No.
Plaintiffs-Appellees,
2:07-cv-00628-
v. KJD-GWF
COUNTY OF LYON, a Political OPINION
Subdivision of the State of
Nevada,
Defendant,
and
RICHARD GLOVER, individually,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Argued and Submitted
March 12, 2010—San Francisco, California
Filed February 1, 2011
Before: Procter Hug, Jr. and Jay S. Bybee, Circuit Judges,
and James S. Gwin, District Judge.*
*The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
2035
2036 MATHIS v. GLOVER
Opinion by Judge Hug;
Partial Concurrence and Partial Dissent by Judge Bybee
MATHIS v. GLOVER 2037
COUNSEL
Keith L. Loomis, Reno, Nevada, for the appellant.
Paola M. Armeni, Las Vegas, Nevada, for the appellees.
OPINION
Hug, Circuit Judge:
This case concerns the actions of Richard Glover, the Pub-
lic Administrator of Lyon County, Nevada, after the death of
Joe Mathis. Before us is an interlocutory appeal based only on
the allegations in the complaint denying qualified immunity
for Glover’s actions in entering Joe Mathis’s home without a
warrant and failing to give notice to his sons before doing so.
The complaint makes the following allegations. On May 29,
2008, the deputy sheriff entered Joe Mathis’s home on a wel-
fare check and found him dead. He sealed the residence with
the property inside. He then notified James Mathis, one of Joe
Mathis’s three sons. One of the sons, Anthony Mathis, noti-
2038 MATHIS v. GLOVER
fied the deputy that he would be coming to Smith Valley,
where his father’s home is located, on the next available flight
and would be arriving on June 1st.
On the evening of May 30th, the deputy contacted Glover
in his capacity as Public Administrator and advised him of the
death of Joe Mathis. He informed him of the identity of the
three sons and that Anthony Mathis would be arriving on the
following day, June 1st, to take care of his father’s property
and funeral. On May 31st, Glover entered the residence and
carried away personal property, some of which he stored and
some of which he sold.
[1] The Mathis sons alleged that Glover and Lyon County
violated their rights under the Fourth and Fourteenth Amend-
ments of the United States Constitution, under the Nevada
Constitution and for violations of Nevada state law. Glover
and Lyon County moved for summary judgment on the plead-
ings for the Fourth Amendment allegations. Glover’s motion
was on the grounds that the complaint revealed that he was
entitled to qualified immunity. The district court granted the
motion stating:
Glover is entitled to qualified immunity for the
Fourth Amendment claim’s relating to his initial
entry on the property and securing the property of
the estate. However, Glover is not entitled to quali-
fied immunity for claims that he misappropriated
property for his own benefit and failed to account for
or inventory the property to enable his conversion of
the property.
Only the denial of qualified immunity is subject to interlocu-
tory review, not the granting of qualified immunity.1 Glover
maintains we should review the denial of qualified immunity
1
The granting of qualified immunity is reviewed only as a part of an
appeal of a final judgment.
MATHIS v. GLOVER 2039
based upon the last sentence in the district court’s ruling. That
sentence is best understood as relating to the allegations of the
conversion of property in violation of state law. That interpre-
tation is confirmed by the statement in the Mathis brief that
they only base the Fourth Amendment violations upon the ini-
tial entry. Thus there is no denial of qualified immunity on the
violation of Fourth Amendment rights before us. Glover also
is not entitled to qualified immunity on Mathis’ claim of a
procedural due process violation under the Fourteenth
Amendment. The right to notice and hearing prior to a public
official’s administrative taking of property is clearly estab-
lished. See, e.g., Fuentes v. Shevin, 407 U.S. 67, 82, 97 (1972)
(a later hearing does not remedy the prior deprivation in a
replevin case); United States v. James Daniel Good Real
Property, 510 U.S. 43, 53 (1993) (“the right to prior notice
and a hearing is central to the Constitution’s command of due
process” absent extraordinary circumstances).
[2] There was no extraordinary circumstance here and the
failure to give notice and an opportunity to respond before
Glover took the items from the house violated due process.
Glover was not entitled to qualified immunity because the law
was clearly settled.2
AFFIRMED.
2
The dissent would reach the peculiar result of granting qualified immu-
nity to Glover on the due process issue. He dashed into the decedent’s
home just before one of the decedent’s three sons was to arrive to take
care of the property, which he well knew. Glover then removed the prop-
erty and converted it to his own use, selling some of it. The legitimate pur-
pose of “securing” the property does not necessitate the “removal” of the
property. It was quite secure in the house. Had notice been given to the
sons, and an opportunity to be heard, it is very doubtful that Glover could
have removed the property and carried out his plan. The purpose of
Mathews v. Eldridge, 424 U.S . 319 (1976), would have been well served
by the notice and opportunity to respond.
2040 MATHIS v. GLOVER
BYBEE, Circuit Judge, concurring in part1 and dissenting in
part:
In the immediate aftermath of Joe Mathis’s death, the pub-
lic administrator of Lyon County, Richard Glover, entered the
deceased’s residence and secured some of his personal prop-
erty. He did so under the authority of a state statute that
allowed the public administrator to secure the property of the
deceased if the administrator found that: (1) “[t]here are no
relatives of the deceased who are able to protect the proper-
ty;” and (2) “[f]ailure to do so could endanger the property.”
NEV. REV. STAT. § 253.0405 (1999).2 Subsequently, Joe
Mathis’s three sons (“Plaintiffs”) sued Glover, alleging, inter
alia, that Glover violated their Fourteenth Amendment proce-
dural due process rights. Specifically, Plaintiffs alleged that
NRS § 253.0405 (the “Nevada statute”) was facially unconsti-
tutional because it failed to provide for notice and a hearing
prior to the public administrator’s securing the property of the
deceased.
Although neither the Supreme Court nor any circuit has
addressed what process is due to the relatives of a deceased
in analogous circumstances—when the deceased has just died,
when we don’t know yet who stands to inherit the deceased’s
property, when no one has been appointed to administer the
deceased’s estate, and when the property deprivation is both
temporary and effectuated only to preserve the deceased’s
estate—the majority cursorily concludes Glover is not entitled
to qualified immunity because “[t]he right to notice and a
1
I agree with the majority that the district court granted Glover qualified
immunity on the Fourth Amendment search and seizure claims. Accord-
ingly, this part of the district court’s ruling is not properly before us. See
Sanchez v. Canales, 574 F.3d 1169, 1172 (9th Cir. 2009) (“The district
court’s grant of qualified immunity . . . is not independently interlocutorily
appealable.”).
2
Both conditions are no longer required. The statute was amended in
2009 and, under the current statute, a public administrator may secure
property when either condition is met.
MATHIS v. GLOVER 2041
hearing prior to a public official’s administrative taking of
property is clearly established.” Maj. Op. at 2039.
The majority has erred at each step of the qualified immu-
nity analysis.3 First, the majority erred by holding that the
Constitution requires predeprivation notice and a hearing
before a public administrator secures the property of the
deceased. And second, it erred by holding that the right to
predeprivation notice and a hearing—in the particular context
of a public administrator securing the property of the
deceased—was so clearly established at the time of the
alleged violation that Glover should have known his conduct
was illegal. I respectfully dissent.
I
Fourteenth Amendment procedural due process analysis
proceeds in two steps: “the first asks whether there exists a
liberty or property interest which has been interfered with by
the State; the second examines whether the procedures atten-
dant upon that deprivation were constitutionally sufficient.”
Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989)
(internal citations omitted). I consider each step in turn.
A
“The types of interests that constitute . . . ‘property’ for
Fourteenth Amendment purposes are not unlimited; the inter-
est must rise to more than an abstract need or desire and must
be based on more than a unilateral hope. [A]n individual
claiming a protected interest must have a legitimate claim of
3
When evaluating whether qualified immunity protects a state official,
we generally engage in a two-step analysis. First, we consider “whether,
taken in the light most favorable to the party asserting the injury, the facts
alleged show the [state official’s] conduct violated a constitutional right.”
Krainski v. Nevada ex rel. Bd. of Regents, 616 F.3d 963, 968 (9th Cir.
2010). If so, we consider “whether the right was clearly established in
light of the specific context of the case.” Id.
2042 MATHIS v. GLOVER
entitlement to it.” Id. (internal quotation marks and citations
omitted).
Here, Plaintiffs posit two property interests: an ownership
interest in their own personal property that they stored at their
father’s residence and an interest in their father’s personal
property as devisees under Joe Mathis’s will. Although the
first interest is clearly a cognizable property interest under the
Fourteenth Amendment, determining whether heirs have “a
legitimate claim of entitlement,” id., to property devised to
them under a will presents a more complicated question. The
heirs’ interest as devisees under a will is fundamentally differ-
ent from a simple ownership interest. As devisees under a
will, the heirs do not acquire a possessory interest in the dece-
dent’s property until the personal representative of the dece-
dent’s estate administers the estate, settles its debts, and
delivers the remaining property to the heirs. See NEV. REV.
STAT. § 143.020 (2009). Thus, while it is immediately appar-
ent that an ownership interest in property vests the moment
the owner acquires the property, the heirs’ interest in property
devised under a will may not vest until the will is probated
and the estate is administered. See 80 AM. JUR. 2d Wills
§ 1289 (2002) (stating that although in some jurisdictions “a
devisee becomes vested with the same right to, and interest in,
the devised property [upon the death of the testator] . . . it has
also been held that upon the death of the testator, all property,
whether real or personal, passes directly to the personal repre-
sentative, who holds legal title throughout the period of
administration and distribution of the estate”).
Nevada courts have held that “the title to real estate vests
in the heirs of devisees at the moment of the death of [the]
testator . . . subject only to the lien of the [personal represen-
tative] for the payment of the debts and expenses of adminis-
tration.” Wren v. Dixon, 161 P. 722, 732 (Nev. 1916). Under
this authority, the heirs’ interest in the decedent’s real prop-
erty as devisees clearly qualifies as a property interest under
the Due Process Clause. However, Wren is not dispositive
MATHIS v. GLOVER 2043
here because Plaintiffs assert an interest in the decedent’s per-
sonal property. So far as I can determine, Nevada courts have
not addressed whether legal title to personal property devised
under a will also vests in the devisees upon the testator’s
death. Nevertheless, even assuming that legal title does not
vest immediately upon the testator’s death and that the heirs
thus have a temporary inchoate interest, this inchoate interest
likely gives the heirs a legitimate claim of entitlement to the
deceased’s property. See Allan v. Allan, 223 S.E.2d 445, 449
(Ga. 1976) (“Even though the right is inchoate rather than
vested, it is a legal right that will be protected. . . . [W]e hold
that the defendant’s interest in the real property as a devisee
under the will is a legally protected interest [under the Due
Process Clause].”); cf. In re Chenoweth, 3 F.3d 1111, 1112-13
(7th Cir. 1993) (holding that a devisee under a will acquires
an entitlement to the devised property within the meaning of
11 U.S.C. § 541(a)(5)(A) upon the death of the testator).
Accordingly, I am willing to assume that Plaintiffs also have
a constitutionally cognizable interest in their father’s personal
property as devisees under the will. I now turn to the second
step of the procedural due process analysis.
B
To determine what procedural protections the Constitution
requires before a public administrator enters the residence of
a deceased and secures the deceased’s property, we balance
(1) the private interest affected by the official action; (2) the
risk of erroneous deprivation and the probable value of addi-
tional procedural safeguards; and (3) the governmental inter-
est, including the fiscal and administrative burdens of
additional procedures. Mathews v. Eldridge, 424 U.S. 319,
335 (1976). First, the private interest affected by a public
administrator’s actions is minimal because, as discussed
above, a decedent’s relatives do not have the right to possess
the decedent’s personal property until the decedent’s estate is
administered. See NEV. REV. STAT. § 143.020. Thus, under
Nevada’s statutory scheme, the property deprivation Plaintiffs
2044 MATHIS v. GLOVER
complain of occurs—and terminates—before a decedent’s rel-
atives are entitled to possess the decedent’s property.
Furthermore, this deprivation also occurs in the immediate
aftermath of the decedent’s death, when Nevada law does not
even tell us who has the right to the possession of the dece-
dent’s property. Although “a personal representative has [the]
right to the possession of all the . . . property of the decedent
. . . until the estate is settled, or until delivered over by order
of the court to the heirs or devisees,” id., “[n]o person has any
power as a personal representative until [the court directs
issuance of letters testamentary].” Id. § 138.010. If the dece-
dent’s estate must be administered in the interim, the probate
court can appoint a special administrator. See NEVADA CIVIL
PRACTICE MANUAL § 34.21 (Jeffrey W. Stempel et al. eds.,
2010) (“Special administrators are generally appointed . . .
where [a personal representative] has not yet been appointed,
and exigencies make it necessary to take prompt actions to
marshal assets or otherwise preserve the estate.”). However,
in the short period between the death of a decedent and the
appointment of a personal representative or a special adminis-
trator by the probate court, it is unclear who—if anyone—has
the legal right to the possession of the decedent’s property.
The Nevada statute foresees this limbo period by specifying
that the public administrator may secure the property of the
deceased “[b]efore the issuance of the letters of administration
for an estate.” NEV. REV. STAT. § 253.0405. The role of a pub-
lic administrator in Nevada anticipates the uncertainty of who
may possess—and thus preserve and protect—the decedent’s
property in the immediate aftermath of the decedent’s death.
The facts of this case confirm that the private interest
affected by a public administrator’s securing property is mini-
mal. Here, Plaintiffs did not have the right to the possession
of their father’s property immediately after his death. At the
time Glover entered the residence, not only had letters testa-
mentary not been issued to the personal representative of the
estate, but the decedent’s will also did not name any of the
MATHIS v. GLOVER 2045
Plaintiffs as personal representatives of the estate. Addition-
ally, Richard Mathis—one of the deceased’s sons—was not
appointed special administrator of the estate until well after
Glover entered the residence. Accordingly, at the time Glover
entered the residence, Plaintiffs had only a future interest in
the decedent’s personal property; Plaintiffs were potential
beneficiaries who stood to inherit under the terms of their
father’s will after the estate was administered. Given the
attenuated nature of this interest, the first Mathews factor does
not support predeprivation process in the particular context of
a public administrator securing the property of the deceased.4
Second, although a predeprivation hearing could reduce the
risk of a public administrator erroneously securing the dece-
dent’s property, the value of predeprivation process is mini-
mal because such process may jeopardize the very property a
public administrator seeks to preserve. Under the Nevada stat-
ute, a public administrator may secure the property of the
deceased only in exigent circumstances, i.e., if the administra-
tor finds that there are no relatives of the deceased able to
secure the property and if failure to secure the property could
endanger it. See NEV. REV. STAT. § 253.0405 (1999). Thus,
once the public administrator makes the required statutory
determination, he must out of necessity act quickly to pre-
serve the decedent’s estate. If, however, the public adminis-
trator must conduct a hearing before securing property that is
in danger of being lost, the purpose of the statute is defeated:
conducting that very hearing may well prevent the public
administrator from securing the endangered property before it
4
Plaintiffs would have a significant property interest in any personal
property that they themselves owned and stored at their father’s residence.
Here, for example, Plaintiffs claimed that some of the firearms and ammu-
nition in their father’s house were actually theirs. However, Glover could
not have known that some of the property located in the deceased’s resi-
dence actually belonged to the Plaintiffs. For purposes of securing the
property, a public administrator is certainly entitled to presume that the
property inside a decedent’s residence is, in fact, the decedent’s property.
2046 MATHIS v. GLOVER
is lost.5 Accordingly, the second Mathews factor does not sup-
port predeprivation process in the particular context of a pub-
lic administrator securing the property of the deceased.
The facts of this case confirm this conclusion. When
Glover entered the residence, the deceased’s sons were unable
to secure their father’s property because they were not physi-
cally present in Lyon County. Accordingly, a predeprivation
hearing could have reduced only the risk that Glover secured
the deceased’s property when the deceased’s property was not
actually in danger. Given that none of the Plaintiffs resided in
Lyon County—one lived in Clark County while the other two
lived out-of-state—the public administrator, who was on the
spot, was in the best position to make this crucial determina-
tion in light of the particular conditions of the locality where
the deceased had lived. I do not see how the opinion of rela-
tives who are not around to secure the deceased’s property—
or to even assess for themselves whether the property is in
danger and should be secured—would inform the public
administrator’s decision to secure the decedent’s property.
Third, the government has a substantial interest in preserv-
ing a decedent’s estate both because safeguarding property
directly affects the welfare of its citizens (if the decedent’s
property is lost, the assets of the decedent’s beneficiaries are
diminished and the estate’s creditors may go unpaid) and
because the decedent’s property may, in certain circum-
stances, escheat to the state. Additionally, the administrative
burden of determining who is entitled to predeprivation pro-
cess in the immediate aftermath of the decedent’s death—
perhaps the only time when the property of the deceased may
5
Furthermore, Nevada law effectively “insures” the deceased’s estate
against loss for the temporary period in which the public administrator
secures the deceased’s property by requiring the public administrator,
prior to taking his oath for office, to “[g]ive an official bond in an amount
not less than $10,000, as required and fixed by . . . his or her county . . . ,
unless a blanket fidelity bond is furnished by the county.” NEV. REV. STAT.
§ 253.020.
MATHIS v. GLOVER 2047
need to be secured—is great. For example, the public admin-
istrator would have to investigate the deceased’s family his-
tory, determine whether the deceased died testate or intestate,
and, when appropriate, examine the decedent’s will to ascer-
tain the identity of the named executors and beneficiaries, all
at a time when the documents the public administrator needs
—such as the decedent’s will—may not be readily available.6
Thus, because of the government’s strong interest in preserv-
ing the decedent’s estate and the impracticality of determining
who has an interest in that estate in the immediate aftermath
of a decedent’s death, the third Mathews factor does not sup-
port predeprivation process.
Upon weighing the Mathews factors, I cannot conclude that
a public administrator is constitutionally required to give
notice and a hearing before securing the property of the
deceased when no one else can do so and when that property
is in danger of being lost. Although “traditionally . . . [an]
opportunity for [a] hearing must be provided before the depri-
vation at issue takes effect,” Fuentes v. Shevin, 407 U.S. 67,
82 (1983), a predeprivation hearing is not required in all cir-
cumstances. For example, where a state must of necessity act
quickly, see Logan v. Zimmerman Brush Co., 455 U.S. 422,
436 (1982), where providing predeprivation process is
impracticable, id., or “where the potential length or severity
of the deprivation does not indicate a likelihood of serious
loss and where the procedures underlying the decision to act
are sufficiently reliable to minimize the risk of erroneous
determination,” Memphis Light, Gas, & Water Div. v. Craft,
436 U.S. 1, 19 (1978), postdeprivation process may satisfy the
Constitution. When a public administrator secures the prop-
erty of a deceased, he must of necessity act quickly to pre-
serve the decedent’s estate; he cannot immediately tell who
6
While the public administrator must eventually investigate “[w]hether
there are beneficiaries named on any asset of the estate,” NEV. REV. STAT.
§ 253.0415, Nevada law sensibly does not require that this investigation
occur before securing the estate’s assets.
2048 MATHIS v. GLOVER
has an interest in the property; and he effects a property depri-
vation of the most benign kind, a deprivation that is both tem-
porary and that actually prevents the property’s permanent
loss. In such a case, postdeprivation process is all that is
required.
The majority cites two cases to support its opposite conclu-
sion, but these cases are easily distinguishable. In Fuentes, the
Supreme Court addressed the constitutionality of two state
statutes “authorizing the summary seizure of . . . chattels in
a person’s possession under a writ of replevin . . . simply
upon the ex parte application of any other person who claim-
[ed] a right to them and post[ed] a security bond.” 407 U.S.
at 69-70. The Court held these statutes “work[ed] a depriva-
tion of property without due process of law [because] they
den[ied] the right to a prior opportunity to be heard before
chattels [were] taken from their possessor.” Id. at 96. Simi-
larly, in United States v. James Daniel Good Real Property,
510 U.S. 43 (1993), the Court held that, “in the absence of
exigent circumstances, [due process] prohibits the Govern-
ment in a civil forfeiture case from seizing [the owner’s
home] without first affording the owner notice and an oppor-
tunity to be heard.” Id. at 46. Neither case, however, involved
a seizure justified by exigent circumstances (i.e., a danger that
the property in question could be lost unless seized) and, cor-
respondingly, “a pressing need for prompt action.” Id. at 56.
I would hold that the Due Process Clause of the Fourteenth
Amendment does not require a pre-seizure hearing in the cir-
cumstances addressed by the Nevada statute: where a public
administrator must act quickly to secure the property of the
decedent in order to preserve it for the decedent’s heirs. Con-
sequently, I would uphold NRS § 253.0405 (1999) against a
facial challenge.7
7
The majority’s only response—that Glover “dashed into the decedent’s
home just before one of the decedent’s three sons was to arrive . . . and
converted [the property] to his own use, selling some of it”—is irrelevant.
MATHIS v. GLOVER 2049
II
Even assuming Plaintiffs had a constitutional right to pre-
deprivation notice and a hearing, it is hard to fathom that right
was—and still is—clearly established. “For a constitutional
right to be clearly established, its contours must be suffi-
ciently clear that a reasonable official would understand that
what he is doing violates that right.” Hope v. Pelzer, 536 U.S.
730, 739 (2002) (internal quotation marks omitted). Although
an official may violate clearly established law “even in novel
factual circumstances . . . the salient question . . . is whether
the state of the law [at the time of the alleged violation] gave
[that official] fair warning that [his conduct] was unconstitu-
tional.” Id. at 741.
Here, the state of the law at the time Glover entered Joe
Mathis’s residence did not give Glover fair warning that he
was violating the Constitution, for two reasons. First, there
was—and still is—no case law balancing the Mathews factors
in the particular context of a public administrator’s securing
the property of the deceased. And second, Plaintiffs’ proce-
dural due process rights were not derivative of a bright-line
constitutional rule, but rather depended on a complicated bal-
ancing test whose outcome was—at best—uncertain. Accord-
ingly, I would, at the very least, grant Glover qualified
immunity. See Humphries v. Cnty. of Los Angeles, 554 F.3d
Maj. Op. at 2039 n.2. Of course, if Glover stole the property of the
deceased he should be liable to Joe Mathis’s estate under a state law action
for conversion; he should be criminally prosecuted as well. But whether
Glover “dashed into the decedent’s home” and “converted [the property]
to his own use” doesn’t really matter when the Plaintiffs have brought a
facial challenge to the Nevada statute. See United States v. Kaczynski, 551
F.3d 1120, 1124 (9th Cir. 2009) (“A facial challenge to a [statute] is . . .
the most difficult challenge to mount successfully, since the challenger
must establish that no set of circumstances exists under which the [statute]
would be valid.” (alterations in original) (quoting United States v. Salerno,
481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987))).
2050 MATHIS v. GLOVER
1170, 1202 (9th Cir. 2009) (“A procedural due process analy-
sis that requires a complicated balancing test is sufficiently
unpredictable that it was not unreasonable for [a state official]
to comply with [constitutionally-inadequate statutory] provi-
sions.”), overruled on other grounds by Los Angeles Cnty.,
Cal. v. Humphries, 131 S. Ct. 447 (2010); Brewster v. Bd. of
Educ. of the Lynwood Unified Sch. Dist., 149 F.3d 971, 983
(9th Cir. 1998) (“[B]ecause procedural due process analysis
essentially boils down to an ad hoc balancing inquiry, the law
regarding procedural due process claims can rarely be consid-
ered clearly established at least in the absence of closely cor-
responding factual and legal precedent.” (internal quotation
marks and citations omitted)). I don’t know how we could
expect Glover to have anticipated that, by following Nevada
law, he was violating the Fourteenth Amendment.
*****
Unlike the “broadly drawn” prejudgment replevin statutes
in Fuentes which did not “limit the summary seizure of goods
to special situations demanding prompt action,” the Nevada
statute is “narrowly drawn to meet . . . unusual condition[s].”
Fuentes, 407 U.S. at 93 (citation omitted). It authorizes prop-
erty seizures only in exigent circumstances: when the property
of the deceased is in danger of being lost and when no one is
able to protect it. I would thus uphold the Nevada statute
because it applies only to “extraordinary situations” creating
“a special need for very prompt action that justifie[s] the post-
ponement of notice and hearing until after the seizure.” James
Daniel Good Real Prop., 510 U.S. at 52-53. Alternatively, I
would grant Glover qualified immunity against Plaintiffs’
facial challenge. I respectfully dissent.