Wayne Wright v. Charles Beck

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WAYNE WILLIAM WRIGHT, No. 19-55084

Plaintiff-Appellant,

D.C. No.

v. 2:15-cv-05805-

R-PJW

CHARLES L. BECK; MICHAEL NELSON

FEUER; HEATHER AUBRY; RICHARD

TOMPKINS; JAMES EDWARDS; CITY OPINION

OF LOS ANGELES,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

Manuel L. Real, District Judge, Presiding

Argued and Submitted April 1, 2020

Pasadena, California

Filed December 1, 2020

Before: Richard A. Paez, Consuelo M. Callahan, and

Lawrence VanDyke, Circuit Judges.

Opinion by Judge Paez

2 WRIGHT V. BECK

SUMMARY *

Civil Rights

The panel affirmed in part and reversed in part the

district court’s summary judgment in an action brought

pursuant to 42 U.S.C. § 1983 alleging, in part, that law

enforcement officials violated plaintiff’s Fourteenth

Amendment due process rights when they seized and

destroyed a portion of his firearms collection.

Officers of the Los Angeles Police Department

(“LAPD”) executed a search warrant and seized plaintiff’s

collection of over 400 firearms. Plaintiff spent the next

decade trying to recover the collection, asserting he owned

the firearms lawfully. The LAPD voluntarily returned

approximately eighty firearms, but kept the rest because, in

its determination, plaintiff had not submitted sufficient proof

that he owned them. While the parties were still negotiating,

LAPD officer Edwards applied to the Los Angeles County

Superior Court for an order granting permission to destroy

the firearms, without giving plaintiff notice that he intended

to seek such an order. Having obtained the order, the LAPD

destroyed the firearms by smelting them.

The panel held that plaintiff did not argue he was entitled

to notice beyond what due process mandated, as defendants

asserted. Had plaintiff abandoned the firearms and the

requisite time had lapsed under California Penal Code

section 34000(a), perhaps the LAPD could have applied ex

parte for a destruction order without giving notice of its

*

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

WRIGHT V. BECK 3

intended action. But given that plaintiff continued to assert

a claim of right to the firearms and reasonably believed that

the LAPD was still reviewing the documentation he

provided, he was entitled to know that the LAPD intended to

seek an order permitting destruction of the remaining

firearms.

The panel held that a reasonable factfinder could

conclude that officer Edwards violated plaintiff’s due

process rights. The panel had no doubt that officer Edwards

had fair notice that his conduct violated plaintiff’s due

process right to notice, and therefore he was not entitled to

qualified immunity. The panel rejected defendants’

arguments that the district court’s judgment should be

affirmed on alternative grounds, including assertions that

defendants were entitled to derivative quasi-judicial

immunity, that plaintiff released his property interest in the

collection, and that a state order precluded the determination

that plaintiff was entitled to notice. The panel affirmed,

however, the district court’s conclusion that LAPD officers

Aubry and Tompkins were entitled to summary judgment

because there was no evidence linking them to the alleged

due process violation.

Because the panel reversed the district court’s grant of

summary judgment on plaintiff’s Fourteenth Amendment

due process claim, the panel also reversed the district court’s

grant of summary judgment on plaintiff’s failure-to-train

claim brought under Monell v. Dep’t of Soc. Servs. of City of

N.Y., 436 U.S. 658 (1978), which the district court

characterized as derivative of plaintiff’s due process and

Fourth Amendment claims.

In a separate memorandum disposition, the panel

affirmed the district court’s grant of summary judgment on

4 WRIGHT V. BECK

a defense of qualified immunity on plaintiff’s Fourth

Amendment claim.

COUNSEL

Anna M. Barvir (argued), C. D. Michel, Joshua R. Dale, and

Scott M. Franklin, Michel & Associates P.C., Long Beach,

California, for Plaintiff-Appellant.

Matthew A. Scherb (argued), Deputy City Attorney; Blithe

S. Bock, Managing Assistant City Attorney; Scott Marcus,

Chief, Civil Litigation Branch; Kathleen A. Kenealy, Chief

Assistant City Attorney; Michael N. Feuer, City Attorney;

Office of the City Attorney, Los Angeles, California; for

Defendants-Appellees.

OPINION

PAEZ, Circuit Judge:

Wayne Wright spent decades amassing a collection of

over 400 firearms, which, according to him, was worth over

half a million dollars. In 2004, officers of the Los Angeles

Police Department (LAPD) executed a search warrant and

seized the collection. Wright spent the next decade trying to

recover it, asserting he owned the firearms lawfully. The

LAPD voluntarily returned approximately eighty firearms,

but kept the rest because, in its determination, Wright had

not submitted sufficient proof that he owned them.

While the parties were still negotiating, an LAPD officer

applied to the Los Angeles County Superior Court for an

order granting permission to destroy the firearms. The

WRIGHT V. BECK 5

officer did not give Wright notice that he intended to seek

such an order. Thus, Wright did not have an opportunity to

contest the officer’s application, and the court granted it.

Having obtained the order, the LAPD destroyed the firearms

by smelting them. Wright sued various parties under

42 U.S.C. § 1983, asserting, among other claims, a violation

of his Fourteenth Amendment right to due process. The

district court granted summary judgment in favor of the

defendants sued in their individual capacities. Because

Wright could not prevail against the individual defendants,

the court also concluded that Wright could not maintain his

Monell failure-to-train claim 1 against the municipal

defendants and granted summary judgement in favor of

those defendants as well.

We consider whether, on the facts alleged by Wright, his

due process rights were violated and, if so, whether the law

was clearly established at the time of the violation. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm in part,

reverse in part, and remand. 2

I.

The saga begins after an LAPD sting operation in 2004. 3

The LAPD obtained a search warrant from the Los Angeles

County Superior Court (the “Los Angeles Court”) and seized

1

Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658 (1978).

2

In a separate memorandum disposition, we affirm the district

court’s grant of summary judgment on a defense of qualified immunity

on Wright’s Fourth Amendment claim.

3

We review the facts, as we must, in the light most favorable to

Wright. See Mendiola-Martinez v. Arpaio, 836 F.3d 1239, 1247 (9th Cir.

2016).

6 WRIGHT V. BECK

more than 400 firearms from Wright’s residence and storage

unit in Ventura County. In August 2006, Wright pled guilty

to one count of possession of an unregistered assault

weapon. The plea agreement, reduced to a court order

imposing probation conditions, stated that Wright could not

possess any firearms for thirty-six months. Under the terms

of the agreement, the firearms would be destroyed or sold

unless Wright could provide proof of ownership to the

LAPD as required by its policy regarding the return of seized

guns. LAPD policy provided:

The Department must accept any reasonable

proof of ownership. Registration in the name

of the lawful owner shall constitute proof of

ownership. However, a lack of registration

does not constitute a lack of proof of

ownership unless registration is required by

law for possession and/or ownership of the

gun. Unless there is articulable probable

cause to disbelieve a sworn declaration from

the claimant/owner, a sales receipt, or other

proof of ownership from the claimant shall

constitute proof of ownership.

Manual of the LAPD, Vol. IV, at § 560.40 4. In other words,

under departmental policy, Wright could prove he owned the

firearms by either showing they were registered in his name

or through a sworn declaration, sales receipt, or other proof

of ownership, unless the LAPD had probable cause to

disbelieve such evidence.

4

Available at https://www.lapdonline.org/lapd_manual/volume_4.

htm#540.

WRIGHT V. BECK 7

A few months after pleading guilty, Wright moved the

Ventura County Superior Court (the “Ventura Court”) for

return of his seized property. The LAPD agreed to release

twenty-eight firearms registered to Wright but opposed

release of the remaining firearms. The court ordered release

of the non-firearm property in a written order. The order,

however, did not identify the twenty-eight firearms the

LAPD conceded belonged to Wright, nor did it address the

remaining firearms of which Wright sought release.

According to Wright, the court delayed ruling on those

matters to another day and, for unspecified reasons, removed

the rescheduled hearing from its calendar. 5 The record,

however, does not indicate a further hearing was ever set.

After completing his term of probation, Wright and his

then-counsel Joseph Silvoso (“Silvoso”) spent the next

seven years negotiating off and on with LAPD Detectives

Richard Tompkins (“Tompkins”) and James Edwards

(“Edwards”) and Deputy City Attorney Heather Aubry

(“Aubry”) about the kinds of records that Wright would need

to furnish to obtain his firearms. In May 2010, Silvoso

provided the LAPD with receipts for ninety-four firearms

and explained the difficulty in obtaining records for the

others because Wright had spent decades acquiring them. A

few months later, the LAPD explained that it was “slowly”

reviewing the records Wright provided but, for unexplained

reasons, stated it required original receipts rather than the

copies Wright provided. Silvoso explained he could not

hand over the original receipts but invited Edwards and

5

Wright represents that the court continued the hearing to decide the

remaining claims and later removed the hearing from calendar but does

not cite a written ruling or minute order to that effect. The LAPD

reiterated the same procedural history in its opposition to Wright’s 2011

motion for a return of his property.

8 WRIGHT V. BECK

Aubry to inspect them in his office. In November 2010,

Silvoso followed up with Edwards and Aubry asking if they

needed anything beyond the original receipts and a sworn

declaration to prove ownership of the firearms. Edwards and

Aubry did not respond.

About a year later, in August 2011, Wright filed another

motion in the Ventura Court for return of his firearms. In its

opposition, the LAPD reiterated that it did not oppose

releasing twenty-six firearms, all of which reflected a

“Dealer Record of Sale” to Wright, but opposed releasing

the remaining firearms. 6 The LAPD also moved the Ventura

Court for an order to destroy the remaining firearms. In

reply, Wright filed a declaration asserting he owned all the

seized firearms (save for forty) and attached the ninety-four

receipts he previously had provided to the LAPD.

The court held a hearing the following month, in

September 2011. At the hearing, the LAPD admitted it had

delayed reviewing Wright’s records and had not yet

reviewed the receipts or Wright’s sworn declaration. The

department explained it needed additional time to review the

records to determine whether Wright had provided

reasonable proof of ownership. As a result of the LAPD’s

representation, the court, in a written order dated October 17,

2011, ordered the LAPD to release the twenty-six firearms it

had agreed belonged to Wright. 7 The court did not rule on

the remaining disputed firearms. Instead, the court

instructed the parties to meet and confer to determine

6

It is unclear why the LAPD’s initial decision to release twenty-

eight firearms in 2007 dropped to twenty-six in 2011.

7

The summary judgment record does not contain a copy of the court

reporter’s transcript of this hearing.

WRIGHT V. BECK 9

whether the ownership status of the remaining firearms

could be resolved informally and, if not, to return to court. 8

Immediately after the hearing, Wright and Silvoso spoke

with Aubry and Tompkins in the courthouse hallway.

During that conversation, Aubry and Tompkins stated they

would contact them if the LAPD believed they needed

additional proof of ownership. In November 2011, Wright

provided the original versions of the ninety-four receipts to

the LAPD. Later that month, Tompkins emailed Silvoso

stating that the LAPD was “still working [their] way through

the receipts.” A few months later, in March 2012, Tompkins

reassured Silvoso that the LAPD was “making progress”

with Wright’s case and would contact Silvoso within a few

weeks. The parties continued to negotiate over email.

In April 2012, Edwards and Tompkins determined

Wright had proved that he owned eighty of the ninety-four

firearms for which he provided receipts, which included the

original twenty-six that the LAPD already had released, as

provided by the Ventura Court’s order. The order permitting

release of the twenty-six firearms did not reference or grant

a request to destroy the remaining 300-plus firearms 9 in the

LAPD’s custody. Nor did the officers tell Wright that they

8

Defendants contend that the court’s October 2011 order constituted

a “deni[al]” of Wright’s request for return of all his firearms and stress

that Wright never “[sought] review” of this order. But, contrary to

Defendants’ argument, the Ventura Court did not decide the fate of the

remaining guns, and, as this court later recognized, left “the final

resolution” of those guns “for another day.” Wright v. Beck, 723 Fed.

App’x 391, 392 (9th Cir. Dec. 20, 2017).

9

This number is estimated by subtracting from the original

463 seized firearms the eighty firearms the LAPD conceded belonged to

Wright and the forty firearms over which Wright did not declare

ownership.

10 WRIGHT V. BECK

had completed their review process or had probable cause to

disbelieve his sworn declaration as to the remaining

firearms. In fact, no one informed Wright or Silvoso the

review process had been completed, or that it was

determined Wright did not prove he owned the remaining

firearms. Wright assumed that Tompkins and Edwards were

reviewing his records to determine whether he needed to

provide additional proof. He assumed so because of their

consistent representations that they were still reviewing the

records. He also understood the court’s statements at the

September 2011 hearing required the parties to return to

court once informal negotiations had failed.

Instead, in December 2013, Edwards applied ex parte to

the Los Angeles Court—to the same judge who had

approved the 2004 search warrant—for an order permitting

destruction of the remaining firearms. In the request for

destruction, Edwards represented to the court:

The evidence was seized in 2004. Items that

have been identified as belonging to the

[defendant] though [sic] receipts, DROS and

Etrace have been returned. No evidence of

ownership by the [defendant] has been

received in regard to the last remaining items

of evidence. The time to appeal has long

since passed.

Wright presents no evidence suggesting that Aubry knew

about or instructed Edwards to seek the court order without

providing Wright or his counsel notice. Similarly, Wright

presents no evidence that Tompkins facilitated Edwards’s

efforts in seeking the court order. Nonetheless, it is

undisputed that neither Edwards, Tompkins, nor Aubry gave

notice to Wright or his counsel. Ultimately, the court

WRIGHT V. BECK 11

granted the application and issued the order. Accordingly,

in June 2014, the LAPD destroyed the remaining 300-plus

firearms, over which Wright continued to assert ownership.

In August 2014, Wright’s counsel learned that the LAPD had

destroyed the firearms.

The following year, Wright sued Aubry, Edwards, and

Tompkins, Los Angeles Police Department Chief Charles L.

Beck (“Beck”), Los Angeles City Attorney Michael N. Feuer

(“Feuer”), and the City of Los Angeles (the “City”)

(collectively, “Defendants”) in federal court. Wright’s First

Amended Complaint, the operative complaint, alleged,

among other claims: (1) violations of his Fourth and

Fourteenth Amendment rights under 42 U.S.C. § 1983

against all defendants and sought damages against only

Aubry, Edwards, and Tompkins; and (2) a Monell claim

against Beck, Feuer, and the City for failure to train. Wright

sued Aubry, Edwards, and Tompkins in their individual

capacities and Beck and Feuer solely in their official

capacities. Defendants moved to dismiss, arguing that the

Ventura Court impliedly ruled in its September 2011 order

that Wright had no possessory interest in the firearms. The

district court granted the motion, and Wright appealed. We

reversed, holding in a memorandum disposition that the

court “grossly mischaracterized” the Ventura Court order to

suggest that Wright had no possessory interest in the

firearms. Wright, 723 Fed. App’x at 392. We reasoned that

the Ventura Court left “the final resolution” of those guns

“for another day.” Id.

On remand, and after discovery had closed, Defendants

moved for summary judgment on the merits of Wright’s

Fourth and Fourteenth Amendment claims. Defendants

Aubry, Tompkins, and Edwards also raised a qualified

immunity defense. The district court granted the motion,

12 WRIGHT V. BECK

concluding the individual named Defendants, even those

sued in their official capacity, were entitled to qualified

immunity. 10 The court reasoned that Tompkins and

Edwards were entitled to qualified immunity because they

acted in accordance with California law, LAPD policy, and

court orders. The court also reasoned that Beck, Aubry, and

Feuer were entitled to qualified immunity because there was

no evidence they promulgated or enforced any illegal

policies.

Further, the district court held that Wright’s due process

rights were not violated because he was not entitled to notice

that the LAPD sought a disposition order from the Los

Angeles Court to destroy the firearms. The district court also

held no Fourth Amendment violation occurred because the

officers acted reasonably in refusing to return the seized

firearms that had not been released by court order. Last,

because the district court granted summary judgment in

favor of Defendants on Wright’s Fourth and Fourteenth

Amendment claims, it concluded that Wright’s Monell claim

also failed as a matter of law.

Wright timely appealed.

II.

We review de novo grants of summary judgment.

Mendiola-Martinez, 836 F.3d at 1247. In so doing, we “must

determine whether, viewing the facts in the light most

favorable to . . . the non-moving party, any genuine issues of

10

The court did not specify for which alleged constitutional

violation they were entitled to qualified immunity.

WRIGHT V. BECK 13

material fact exist, and whether the district court correctly

applied the substantive law.” Id.

Qualified immunity shields government officials from

civil liability if “their actions could reasonably have been

thought consistent with the rights they are alleged to have

violated.” Anderson v. Creighton, 483 U.S. 635, 638 (1987).

The protection “attaches when an official’s conduct does not

violate clearly established statutory or constitutional rights

of which a reasonable person would have known.” Kisela v.

Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam) (quoting

White v. Pauly, 137 S. Ct. 548, 551 (2017) (per curiam)).

The reasonableness of the officer’s conduct is “judged

against the backdrop of the law at the time of the conduct.”

Id. (quotation marks and citation omitted).

“In determining whether an officer is entitled to qualified

immunity, we employ a two-step test . . . .” Mattos v.

Agarano, 661 F.3d 433, 440 (9th Cir. 2011) (en banc). First,

“we decide whether the officer violated a plaintiff’s

constitutional right . . . .” Id. “[I]f the answer to that inquiry

is ‘yes,’ we proceed to determine whether the constitutional

right was ‘clearly established in light of the specific context

of the case’ at the time of the events in question. Id. (quoting

Robinson v. York, 566 F.3d 817, 821 (9th Cir. 2009)). In the

second step, “we ask whether [the constitutional right’s]

contours were sufficiently clear that every reasonable

official would have understood that what he is doing violates

that right.” Id. at 442 (quotation marks omitted). “While we

do not require a case directly on point, . . . existing precedent

must have placed the statutory or constitutional question

beyond debate.” Id. (quotation marks, citation, and

alteration omitted). “The Supreme Court has made ‘clear

that officials can still be on notice that their conduct violates

established law even in novel factual circumstances.’” Id.

14 WRIGHT V. BECK

(quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)); see also

A.D. v. Cal. Highway Patrol, 712 F.3d 446, 455 (9th Cir.

2013).

A.

The Fourteenth Amendment guarantees that a state

cannot “deprive any person of . . . property[] without due

process of law.” U.S. Const., Amend. XIV. 11 Despite the

somewhat Delphic formulation, one of due process’s central

and undisputed guarantees is that, before the government

permanently deprives a person of a property interest, that

person will receive—at a minimum—notice. Mullane v.

Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950);

see also Tulsa Pro. Collection Servs. v. Pope, 485 U.S. 478

(1988); Dusenbery v. United States, 534 U.S. 161, 167

(2002); United States v. James Daniel Good Real Prop.,

510 U.S. 43, 48 (1993).

Notice is so critical because it enables the opportunity to

be heard. Mullane, 339 U.S. at 314; Memphis Light, Gas &

Water Div. v. Craft, 436 U.S. 1, 14 (1978) (“The purpose of

notice under the Due Process Clause is to apprise the

affected individual of, and permit adequate preparation for,

an impending ‘hearing.’”). A meaningful opportunity to be

heard, in turn, provides its own benefits. It helps “minimize

substantively unfair or mistaken deprivations.” Fuentes v.

Shevin, 407 U.S. 67, 81 (1972). It also preserves the “high

value, embedded in our constitutional and political history,

that we place on a person’s right to enjoy what is his, free of

governmental interference.” Id. And it preserves a person’s

dignity to “choose for himself whether to appear or default,

11

Defendants do not dispute that Wright’s firearms fall under the

category of “property” governed by due process.

WRIGHT V. BECK 15

acquiesce or contest.” Mullane, 339 U.S. at 314. Without

notice, “[the] right to be heard has little reality or worth.”

Id. 12

Thus, notice must be “reasonably calculated, under all

the circumstances, to apprise interested parties of the

pendency of the action and afford them an opportunity to

present their objections.” Mullane, 339 U.S. at 314; City of

W. Covina v. Perkins, 525 U.S. 234, 240 (1999) (holding the

form of notice must be sufficient to ensure the opportunity

to be heard is “meaningful.”).

In the time since Mullane was issued, the Supreme Court

has “adhered unwaveringly” to its pronouncements,

frequently holding that inadequate attempts to provide notice

violate due process. Mennonite Bd. of Missions v. Adams,

462 U.S. 791, 797 (1983) (citing cases). For instance, in

Walker v. City of Hutchinson, 352 U.S. 112, 116 (1956), the

Court held notice of a condemnation proceeding in a local

newspaper was insufficient to provide a landowner with

notice. The Court reasoned, given the fundamental

importance of notice, and the risk that newspaper publication

alone would fail to ensure it, due process was violated. Id.

Similarly, in Greene v. Lindsey, 456 U.S. 444, 453 (1982),

the Court held that posting notice on the door of a tenant’s

apartment of a forcible entry or detainer action “does not

satisfy minimum standards of due process.” Due process

demanded more, the Court explained, given that additional

12

Although Wright also argues that a due process violation also

occurred under the balancing test under Mathews v. Eldridge, 424 U.S.

319, 335 (1976), the Mullane test “supplies the appropriate analytical

framework,” as the pending issue involves “the adequacy of the method

used to give notice,” Dusenberry, 534 U.S. at 167–68.

16 WRIGHT V. BECK

efforts, such as notice by mail or additional home visits, were

feasible. Id. at 454–55.

By logical extension, outright failures to even attempt to

provide notice violate due process. For example, in Sniadick

v. Family Finance Corp., the Supreme Court struck down a

state statute that allowed a worker’s wages to be frozen,

without notice or an opportunity to be heard, in between

garnishment and resolution of a lawsuit. 395 U.S. 337, 338–

42 (1969). The Court concluded: “Where the taking of one’s

property is so obvious, it needs no extended argument that

absent notice and a prior hearing this prejudgment

garnishment procedure violates the fundamental principles

of due process.” Id. at 342 (citation omitted); see also

Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84 (1988)

(“Failure to give notice violates ‘the most rudimentary

demands of due process of law.’”) (quoting Armstrong v.

Manzo, 380 U.S. 545, 550 (1965)); Perkins, 525 U.S. at 240–

41.

Due process is not satisfied simply because judges have

facilitated the deprivation. For instance, in Fuentes, the

Court struck down state statutes authorizing the summary

seizure of goods under an ex parte writ of replevin, without

notice or an opportunity to be heard. 407 U.S. at 96–97. The

Court explained: “If the right to notice and a hearing is to

serve its full purpose, then, it is clear that it must be granted

at a time when the deprivation can still be prevented.” Id.

at 81. The Court reached this conclusion even though the

putative owner of the goods eventually received notice and

could contest the deprivation through post-deprivation

procedures. Id. And it made no difference a judge oversaw

the process and granted the writ of replevin. See id.

Similarly, in Peralta, the Supreme Court reversed a

default judgment that was “entered without notice or

WRIGHT V. BECK 17

service” as “constitutionally infirm.” 485 U.S. at 84. The

Court held that reversal was required, even without a

showing of prejudice, and rejected the lower court’s

threshold inquiry into the defenses the party would have

brought or the litigation strategy they would have adopted.

Id. at 86–87 (“[I]t is no answer to say . . . due process of law

would have led to the same result because [a defendant] had

no adequate defense upon the merits.”) (quoting Coe v.

Armour Fertilizer Works, 237 U.S. 413, 424 (1915)). That

is because notice—regardless of what it might have

accomplished in a particular case—is such a core aspect of

due process that its absence will lead us to question the

fairness of the deprivation.

Further, even in cases after the government has lawfully

seized property, reasonable notice must be provided prior to

a final deprivation. See Perkins, 525 U.S. at 240–41

(“[W]hen law enforcement agents seize property pursuant to

warrant, due process requires them to take reasonable steps

to give notice that the property has been taken so the owner

can pursue available remedies for its return.”). That is why,

in Matthias v. Bingley, the Fifth Circuit held that a municipal

ordinance that authorized, without notice to the property

owners, the disposal of property seized pursuant to a

criminal investigation violated due process. 906 F.2d 1047,

1053 (5th Cir. 1990). The court reasoned that the ordinance

created a “high risk of erroneous deprivations.” Id. at 1052.

Similarly, in Gates v. City of Chicago, the Seventh

Circuit reversed a summary judgment ruling in favor of a

municipality on a § 1983 action because a triable issue of

fact existed about whether the notice form provided to

arrestees satisfied due process. 623 F.3d 389, 401 (7th Cir.

2010). The court concluded that the procedures to retrieve

property were “arcane and not generally available,” and thus

18 WRIGHT V. BECK

individual notice was required under Memphis Light. Id.

at 400.

Unsurprisingly, for decades, California courts have also

heeded the straightforward rule of requiring notice, both as

due process principle and as a procedural rule. Menefee &

Son v. Dep’t of Food & Agric., 245 Cal. Rptr. 166, 170 (Ct.

App. 1988) (“[A]t a minimum, due process requires notice

and an opportunity for a hearing.”); Conservatorship of

Moore, 229 Cal. Rptr. 875, 879 (Ct. App. 1986) (“An

elementary and fundamental requirement of due process in

any proceeding which is to be accorded finality is notice

reasonably calculated, under all the circumstances, to

apprise interested parties of the pendency of the action

. . . .”) (quoting Mullane, 339 U.S. at 314); People v.

Wilshire Ins. Co., 119 Cal. Rptr. 917, 920 (Ct. App. 1975)

(“[I]n an adversary proceeding where an order may affect the

rights of an adverse party, notice must be given to protect the

adverse party’s right to be heard on the issue as a matter of

due process of law.”); McDonald v. Severy, 59 P.2d 98, 99

(Cal. 1936) (“The general rule is that notice of motion must

be given whenever the order sought may affect the rights of

an adverse party.”); In re Sara D., 104 Cal. Rptr. 2d 909, 916

(2001) (“[A]bsent extraordinary circumstances, even ex

parte applications require notice to all parties of the

application the day before the ex parte hearing.”) (citing Cal.

Rules of Court 379).

Thus, like federal courts, when a party fails to give

adequate notice to an adverse party of a court proceeding,

California courts have not hesitated, in various contexts, to

declare a due process violation and nullify the underlying

order or judgment. See, e.g., Jones v. Otero, 203 Cal. Rptr.

90, 92 (Ct. App. 1984) (reversing sanctions order because

“no notice whatsoever was given” in violation of

WRIGHT V. BECK 19

“fundamental principles of due process”); O’Brien v. Cseh,

196 Cal. Rptr. 409, 412 (Ct. App. 1983) (“Plaintiff’s rush to

compel sanctions against defendant on an ex parte basis

[without notice] was a flagrant violation of due process

principles.”). Statutory schemes that authorize the

destruction of property without notice similarly have been

held to be unconstitutional. See Menefee & Son, 245 Cal.

Rptr. at 171.

In contrast, when “timely and adequate notice” of a

hearing implicating a person’s rights was given, courts have

declined to find a due process violation. See, e.g.,

Needelman v. DeWolf Realty Co., 191 Cal. Rptr. 3d 673, 685

(Ct. App. 2015), as modified on denial of reh’g (Aug. 18,

2015) (holding ex parte motion in eviction proceeding did

not deprive individual of due process because he received

adequate notice of the application prior to the hearing)

(quoting Goldberg v. Kelly, 397 U.S. 254, 267 (1970)).

To be sure, due process tolerates some variance on when

to provide notice, “appropriate to the nature of the case.”

Mullane, 339 U.S. at 313. For instance, in “rare and

extraordinary situations,” the government may deprive an

individual of property without notice or an opportunity to be

heard, so long as the person is later notified of the

deprivation and the procedures to contest it. Bd. of Regents

v. Roth, 408 U.S. 564, 570 n.7 (1972). One such example

occurred in North American Cold Storage Co. v. Chicago,

211 U.S. 306, 315 (1908), wherein the Supreme Court

upheld a municipal ordinance that authorized the summary

seizure and destruction of food deemed unfit for human

consumption. The Court explained that the need for

immediate action outweighed the risk of erroneous

deprivation, and, if such error occurred, the owner could

20 WRIGHT V. BECK

recover damages after the incident in an action at law. Id.

at 315–16. 13

Further, the Supreme Court has limited the amount of

effort a party must exert to provide actual notice to a party

whose rights are implicated. See Dusenbery, 534 U.S.

at 168–72. In Dusenbery, for example, the Court considered

whether the government’s attempt at serving notice to an

individual of its intention to forfeit property seized at the

time of his arrest satisfied due process’s notice requirements.

The government sent letters by certified mail to the

correctional institution in which he had been incarcerated,

the residence where he had been arrested, and to his mother’s

home; and it published legal notice of the forfeiture for three

consecutive weeks in a local newspaper. Id. at 164. The

individual sued, claiming he was entitled to “actual notice”

under Mullane. Id. at 169–73. The Court disagreed, holding

that due process does not require “actual notice,” but rather

only reasonable efforts to achieve it, and held the

government’s efforts were reasonable. Id. at 169–71.

Additionally, the Supreme Court has limited the content

a notice form must contain to satisfy due process. For

instance, in Perkins, the Court held that the government need

not “give detailed and specific instructions or advice to

owners” on how they can retrieve property that was lawfully

seized when those procedures are already publicly available.

525 U.S. at 236, 241. Instead, the government need only

take “reasonable steps” to inform the owner that property has

been seized. Id. at 240. When the remedial procedures are

not publicly available, however, reasonable steps must still

13

Defendants do not suggest such extraordinary circumstances

justified the need to destroy the firearms here.

WRIGHT V. BECK 21

be taken to provide notice of them. See Memphis Light,

436 U.S. at 13–15.

Despite these minor limitations on the notice

requirement, no court has held—at least under the

circumstances presented here—that notice can be altogether

abandoned. To the contrary, under almost every conceivable

scenario, there is “no doubt” that the government must take

reasonable steps to provide notice. See Mullane, 339 U.S.

at 313. Given the wealth of precedent—and the safeguards

notice provides—the right to notice has been rightfully

regarded as “elementary,” “fundamental,” Mullane,

339 U.S. at 314, and “rudimentary,” Kelly, 397 U.S. at 267.

The right cannot reasonably be disputed.

Defendants nonetheless argue that the notice

requirement was satisfied at the time the firearms were

seized, and Wright was not entitled to any further notice

thereafter. To address the merits of Defendants’ argument,

we divide up the chronology and nature of the deprivations.

Wright was deprived of his property twice. The first

occurred when LAPD officers seized his firearms during the

execution of a search warrant. That was a temporary

deprivation that is not at issue.

The second deprivation occurred when the LAPD

destroyed Wright’s property amid ongoing negotiations

between Wright and the LAPD. Key to this claim is that,

without notice to Wright, Edwards sought an order from the

Los Angeles Court granting permission to destroy Wright’s

firearms. Wright alleges that Edwards sought this order

while the parties were still informally resolving the

ownership dispute, as encouraged by the Ventura Court. The

subsequent destruction of Wright’s firearms constituted a

permanent deprivation and underscores the need for notice.

22 WRIGHT V. BECK

We have no problem concluding that a rational trier of

fact could find a due process violation under these

circumstances. The wealth of precedent suggests that by

failing to provide Wright with notice and the opportunity to

be heard before the court issued the destruction order,

Edwards denied Wright the most basic and fundamental

guarantees of due process. Mullane, 339 U.S. at 314;

Peralta, 485 U.S. at 86–87; Fuentes, 407 U.S. at 81; Perkins,

525 U.S. at 240–41. 14 First, Supreme Court precedent

makes clear that ex parte hearings that affect a party’s

interest in property, without notice, violate due process and

any order resulting from such a hearing is void. Fuentes,

407 U.S. at 81. Second, Supreme Court precedent makes

clear that the purpose of notice is to “apprise the affected

individual of, and permit adequate preparation for, an

impending ‘hearing.’” Memphis Light, 436 U.S. at 14.

When an individual, however, is incapable of “ascertaining”

the time and place of an impending hearing, see Perkins, 525

U.S. at 241, or cannot “reasonably be expected to educate

himself about” such a hearing, see id. at 242, individualized

notice must be provided. Yet here no notice was provided.

Defendants do not dispute the elementary, fundamental,

and rudimentary guarantee of the right to notice. Instead,

they make three points to argue Wright was not entitled to

notice. First, Defendants contend that Perkins stands for the

proposition that Wright deserved no further notice after the

guns were seized, but this reliance is misplaced. As

explained above, Perkins simply reaffirmed the

14

California’s Rules of Court also mandate that a party seeking an

ex parte order “must notify all parties” before the appearance, “absent a

showing of exceptional circumstances.” Cal. Rules of Court,

Rule 3.1203(a), https://www.courts.ca.gov/cms/rules/index.cfm?title=th

ree&linkid=rule3_1203.

WRIGHT V. BECK 23

longstanding view that statutes alone can provide sufficient

notice of how an owner can retrieve his or her property once

it has been seized by the state. 525 U.S. at 241. 15

Perkins does not apply here, where no notice was

provided—statutory or otherwise—that the police intended

to seek a destruction order while Wright’s claim of

ownership was still pending. If anything, Wright could not

have relied on any publicly available information to

reasonably ascertain that Edwards would seek an ex parte

application at the time that he did. See Memphis Light,

436 U.S. at 13–15. He thus was entitled to know about that

“impending hearing.” See id.; see also Gates, 623 F.3d

at 400.

Second, Defendants argue that Wright did have statutory

notice because two California statutes required destruction

of the firearms. Defendants cite California Penal Code

section 34000(a). That provision states that a firearm “shall

be . . . destroyed” when “the firearm is an exhibit filed in any

criminal action or proceeding which is no longer needed or

is unclaimed or abandoned property, which has been in the

possession of the officer for at least 180 days . . . .” Id.

Although the firearms were in LAPD custody for well over

15

Specifically, in that case, police officers seized personal property

pursuant to a search warrant. Perkins, 525 U.S. at 236. The officers left

a form notifying the owners of, among other things, the search, a list of

the items seized, and the names of the officers they could contact for

additional information. Id. at 236–37. Instead of filing a motion for

return of their property, the property owners sued the officers under

§ 1983, arguing they were entitled to notice of the state-law remedies to

recover their property. Id. at 237–38. The Court disagreed, holding that

California law placed the property owners on notice of what remedies

were available to them, and the police thus had no obligation to inform

individuals of publicly available statutory remedies. Id. at 239–41.

24 WRIGHT V. BECK

180 days, Defendants fail to show the second condition was

undisputed—that the firearms were no longer needed as

exhibits in criminal action, unclaimed, or abandoned. 16 To

the contrary, Wright had a pending claim of ownership over

the firearms and could reasonably have believed that the

LAPD was still reviewing his claim. Defendants also rely

on California Penal Code section 18275, but that provision

fails to provide Wright with constructive notice. Section

18275 applies to circumstances in which a firearm is seized

at the scene of a domestic violence dispute, not pursuant to

a warrant, as here. See Cal. Penal Code § 18250 et seq. 17

16

Defendants’ claim that the statute applies “even when the firearms

were not filed as exhibits” is unpersuasive. The case they cite, People v.

Lamonte, 61 Cal. Rptr. 2d 810, 812 (Ct. App. 1997), stands for no such

thing. There, the government argued that a property claimant was not

entitled to the return of property because the statute limited return only

to “exhibits,” and, because the claimant pled guilty, the evidence had

never been filed as exhibits. Id. The court held: “[W]e see no reason to

distinguish between seized property used as exhibits and seized property

which was not used. . . . [The claimant] should have no less due process

regarding return of property by virtue of pleading guilty rather than

proceeding to trial.” Id. That is not a distinction Wright relies on here.

Similarly, little evidence suggests, and a rational trier of fact could

certainly conclude otherwise, that Wright “abandoned” the guns, given

Wright’s counsel’s ongoing communications with Defendants and the

Ventura Court’s September 2011 directive to the parties that they should

resolve their disputes informally.

17

Moreover, § 18275 authorizes the destruction of any firearm held

longer than one year, but specifically exempts firearms that have not

been recovered because of an “extended hearing process” under

California Penal Code section 18420. Section 18420, in turn, allows a

person to petition for a second hearing regarding the return of a

confiscated firearm if the first hearing is unsuccessful. Defendants fail

to show that Wright would not have been entitled to this exemption.

WRIGHT V. BECK 25

Last, Defendants assert they did not need to provide

Wright notice because he already had his opportunity to

pursue available remedies and present his claim of

ownership. This argument misses the mark. Wright’s claim

of ownership was never resolved fully by the Ventura Court.

At the September 2011 hearing, the officers stated they

needed additional time to review Wright’s proof of

ownership. Based on this representation, the court deferred

ruling on Wright’s claims and gave the officers additional

time to review Wright’s ownership records. The court

instructed the parties to attempt to resolve Wright’s

ownership claim informally, and, if those efforts failed, the

parties could return to court. Instead of adhering to these

instructions, however, Defendants turned to a different

venue altogether—the Los Angeles Court—and sought the

ex parte destruction order. By doing so, Defendants pursued

a “procedure that deprive[d] [Wright] of [his] claim[] in a

random manner.” Logan v. Zimmerman Brush Co., 455 U.S.

422, 434 (1982). 18

As the Supreme Court has emphasized time and again,

however, an individual is entitled to notice before “any

proceeding which is to be accorded finality.” Mullane,

339 U.S. at 314; see also Peralta, 485 U.S. at 86–87;

18

In Logan, the Supreme Court held that a state could not skirt its

obligation to provide a hearing to a terminated employee on his request

for reinstatement by scheduling the hearing outside of the 120-day period

mandated by state law. 455 U.S. at 433–35. Logan thus stands for the

straightforward proposition that a state cannot bypass its due process

obligations by creating circumstances that render the process

meaningless. That is akin to what Defendants did here: they partially

litigated Wright’s ownership claims in one adjudicatory proceeding—at

the Ventura Court—while depriving him of his due process rights in

another—at the Los Angeles Court—all the while pointing to state law

to argue that destruction of the firearms was their only choice.

26 WRIGHT V. BECK

Fuentes, 407 U.S. at 81; Perkins, 525 U.S. at 240–41. 19 This

case confirms why the right to notice and an opportunity to

be heard are so fundamental—because “fairness can rarely

be obtained by secret, one-sided determination of facts

decisive of rights.” Fuentes, 407 U.S. at 81 (quoting Joint

Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123,

170–72 (1951) (Frankfurter, J., concurring)). 20 Edwards’s

ex parte application for permission to destroy Wright’s

firearms contained statements that a rational trier of fact

could find were misrepresentations. For example, Edwards

represented to the Los Angeles Court that Wright had

provided “[n]o evidence of ownership” and that “[t]he time

to appeal has long since passed.” But a factfinder could have

determined that Wright did provide evidence of ownership

(i.e., his sworn declaration of ownership), yet Edwards

omitted this fact from his application seeking permission to

destroy Wright’s firearms. Second, a factfinder could have

found that the Ventura Court never entered a final appealable

order denying Wright’s motion for return of his firearms

because the October 17, 2011 order only addressed the

firearms that the LAPD argued could be released to Wright.

That order did not address the disputed firearms. Instead, as

Wright explained, the court instructed the parties at the

September 2011 court hearing to attempt to resolve their

dispute informally and return to court, if necessary.

In sum, Wright does not argue he was entitled to notice

beyond what due process mandates, as Defendants assert.

19

The Supreme Court has also recognized that a claimant’s failure

to comply with a reasonable procedural requirement protects a state from

a due process claim. See Logan, 455 U.S. at 434 n.7. Such a failure

cannot be indisputably assigned to Wright.

20

To be sure, as explained above, a demonstration of prejudice is

not necessary. See Peralta, 485 U.S. at 86–87.

WRIGHT V. BECK 27

Had Wright abandoned the firearms and the requisite time

had lapsed under California Penal Code section 34000(a),

perhaps the LAPD could have applied ex parte for a

destruction order without giving notice of its intended

action. See Logan, 455 U.S. at 434 n.7. But given that

Wright continued to assert a claim of right to the firearms

and reasonably believed that the LAPD was still reviewing

the documentation he provided, he was entitled to know that

the LAPD intended to seek an order permitting destruction

of the remaining firearms.

B.

Because a reasonable jury could find that Wright was

entitled to notice, we must also determine who deprived him

of this right. The record clearly shows that Edwards filed

the application for an order to destroy the firearms and failed

to provide Wright with notice. Thus, taking the facts in the

light most favorable to Wright, a reasonable factfinder could

conclude that Edwards violated Wright’s due process rights.

On the other hand, Wright fails to demonstrate what

specific acts Aubry or Tompkins undertook to facilitate

Edwards’s decision to apply ex parte for a destruction order.

Wright points to evidence demonstrating that Aubry and

Tompkins opposed releasing the firearms to Wright. He

does not, however, cite anything in the record to show that

either Aubry or Tompkins instructed Edwards to proceed

with the application ex parte or otherwise facilitated the

filing of the application. See Jeffers v. Gomez, 267 F.3d 895,

915 (9th Cir. 2001). Because there is no evidence linking

Aubry or Tompkins to the alleged due process violation—

failing to provide notice—we affirm the district court’s

conclusion that Aubry and Tompkins were entitled to

summary judgment.

28 WRIGHT V. BECK

In sum, taking the evidence in the light most favorable to

Wright, a reasonable jury could find that Edwards violated

Wright’s due process right to notice when he applied for a

destruction order without giving Wright notice.

C.

Next, we must determine whether the right to notice of

the ex parte application was “clearly established.” Mattos,

661 F.3d at 442. A constitutional right is clearly established

if the official had “fair notice that her conduct was unlawful”

but still engaged in it. Brosseau v. Haugen, 543 U.S. 194,

198 (2004) (per curiam). Usually, we look to binding

precedent to determine whether an officer had “fair notice”

his or her conduct violated a constitutional right. Mattos,

661 F.3d at 442. And, in reviewing our caselaw, we must be

careful not to—and have indeed been criticized for—

defining clearly-established law “at a high level of

generality.” Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011).

As the Supreme Court explained, broad pronouncements of

an abstract right usually fail to provide a clear sense of the

outer limits of lawful conduct. Saucier v. Katz, 533 U.S.

194, 202 (2001). For example, it may be well-established

that everyone enjoys “the right to due process,” but, as the

Court has explained, this constitutional truism falls short in

elucidating the “objective legal reasonableness” of an

official’s action in any given scenario. Anderson, 483 U.S.

at 639 (quotation marks omitted). Similarly, though in a

different context, it is well-known that the Fourth

Amendment protects against “unreasonable search[es] or

seizure[s],” but that “general proposition . . . is of little help

in determining whether the violative nature of particular

conduct is clearly established.” al-Kidd, 563 U.S. at 742.

Thus, we usually undertake our inquiry “in light of the

specific context of the case, not as a broad general

WRIGHT V. BECK 29

proposition,” and determine whether the right, as explicated,

carries over to the facts before us. Brosseau, 543 U.S. at 198

(quoting Saucier, 533 U.S. at 201).

At the same time, an official may have “fair notice” that

conduct is unlawful, “even without a body of relevant case

law,” if the violation is so “obvious” that no reasonable

official would have engaged in such behavior. Id. at 199;

see also United States v. Lanier, 520 U.S. 259, 271 (1997)

(“[I]n [some] instances a general constitutional rule already

identified in the decisional law may apply with obvious

clarity to the specific conduct in question, even though the

very action in question has not previously been held

unlawful. . . .”) (quotation marks, citation, and alteration

omitted); see also Browder v. City of Albuquerque, 787 F.3d

1076, 1082–83 (10th Cir. 2015) (Gorsuch, J.) (“[S]ome

things are so obviously unlawful that they don’t require

detailed explanation and sometimes the most obviously

unlawful things happen so rarely that a case on point is itself

an unusual thing.”).

We have thus not hesitated to deny qualify immunity to

officials in certain circumstances, “even without a case

directly on point.” See, e.g., A.D., 712 F.3d at 455; Charter

of Hells Angels Motorcycle Club v. City of San Jose,

402 F.3d 962, 975 (9th Cir. 2005) (denying qualified

immunity to officers who unreasonably destroyed property

while executing a search warrant); Mena v. City of Simi

Valley, 226 F.3d 1031, 1041 (9th Cir. 2000) (denying

qualified immunity to officers who “needlessly ransack[ed]

[a] home and destroy[ed] property”); Hernandez v. City of

San Jose, 897 F.3d 1125, 1138 (9th Cir. 2018) (denying

qualified immunity to officers who directed attendees of a

political rally toward a violent crowd of protesters).

30 WRIGHT V. BECK

The need for an on-point case is further diluted when the

“clearly established” rule is concrete and specific. For

example, in Mena, at the time of the allegedly unlawful

conduct, it was “clearly established” that officers violate the

Fourth Amendment during the execution of a search warrant

when they engage in “unnecessarily destructive behavior.”

226 F.3d at 1041 (quoting Liston v. City of Riverside,

120 F.3d 965, 979 (9th Cir. 1997)). Thus, we concluded that

an officer who destroyed an already-ajar door to a home

during the execution of a search warrant was not entitled to

qualified immunity, even though we did not cite a specific

on-point case. Id. That is because what conduct constituted

needless destruction was, in that instance, self-evident. See

id.

Similarly, in Hernandez, we recognized that our

precedent had long established that a person’s substantive

due process rights were violated when a state actor acted

with deliberate indifference to a known or obvious danger

but nonetheless exposed an individual to it. 897 F.3d

at 1135–37. Although the type of danger to which an officer

can expose someone can take innumerable forms, we had no

trouble concluding that the nature of the right provided

“obvious clarity,” in the circumstances there, that

shepherding attendees at a political protest through a

“violent crowd of protesters and actively prevent[ing] them

from reaching safety” violated due process. Id. at 1138.

Turning to the case at hand, we have no doubt that

Edwards had fair notice that his conduct violated Wright’s

due process right to notice. Although “due process” has

been castigated as “cryptic” and “abstract,” see Mullane,

339 U.S. at 313, its balustrades have been identified, time

and again, as notice and an opportunity to be heard, id.

at 314; Peralta, 485 U.S. at 86–87; Fuentes, 407 U.S. at 81;

WRIGHT V. BECK 31

Perkins, 525 U.S. at 240–41. As explained above, California

courts have for decades observed this straightforward rule,

which adds to our confidence that the law was clearly

established. See Drummond ex rel. Drummond v. City of

Anaheim, 343 F.3d 1052, 1060 (9th Cir. 2003) (“In the

absence of binding precedent, a court should look to

whatever decisional law is available to ascertain whether the

law is clearly established for qualified immunity purposes,

including decisions of state courts, other circuits, and district

courts.”) (brackets and internal quotation marks omitted).

Further, unlike the mere general right to “due process,”

Anderson, 483 U.S. at 639, or the abstract right to be free

from “excessive force,” al-Kidd, 563 U.S. at 742, the right

to notice is a specific, concrete guarantee that a person will

be informed of the government’s intent to deprive him or her

of property before doing so. See Mena, 226 F.3d at 1041.

Any reasonable official would have thus known that

deviating from this straightforward requirement—and

indeed dispensing with it entirely—violates the right to due

process.

We are further convinced that the obligation to provide

notice was clearly established given that Edwards was

seeking ex parte permission to destroy the firearms—a

permanent kind of deprivation. See Logan, 455 U.S. at 433.

This makes Edwards’s conduct even more egregious than the

kind prohibited in Fuentes, in which the Court struck down

state statutes authorizing the mere temporary deprivation of

goods through an ex parte writ of replevin. See 407 U.S.

at 81.

Additionally, we conclude Edwards had fair notice that

his conduct violated due process given that he acted in the

complete absence of statutory authority. See Rosenbaum v.

Washoe Cty., 663 F.3d 1071, 1079 (9th Cir. 2011) (denying

32 WRIGHT V. BECK

qualified immunity to officer who arrested individual

without any statutory authority). As we explained above, no

statute authorized Edwards’s decision to seek an ex parte

application for permission to destroy Wright’s property

without notifying Wright of his intent to do so. If anything,

the only express rule that applied made it clear that he needed

to provide notice. See Cal. Rules of Court, Rule 3.1203(a).

Further, the obviousness of the constitutional violation is

especially evident given the Ventura Court’s September

2011 instruction to attempt to resolve the dispute informally

and to return to court, if necessary. The record suggests that

Edwards knew notice should have been provided; otherwise,

he probably would not have told the court that Wright

presented no proof of ownership or insinuated that Wright

had abandoned his ownership claim.

Thus, although we do not identify a case with the exact

factual situation involved here, we conclude that in light of

the precedent that did exist at the time Edwards filed an ex

parte application for permission to destroy Wright’s

firearms, his actions fit within the “obvious” situation. See

Mena, 226 F.3d at 1041. It appears obvious to us, even

without a case addressing identical facts, that a state actor

cannot unilaterally seek to destroy one’s property without

first providing the individual notice of the intent to do so.

That is the only reasonable inference one can draw in light

of Mullane and its progeny. Yet despite knowing that

Wright had a pending claim of ownership, Edwards applied

to the Los Angeles Court, without notice to Wright, for an

order to destroy his property.

We thus conclude that the due process right to notice, as

alleged by Wright, was clearly established and, as a result,

Edwards is not entitled to qualified immunity.

WRIGHT V. BECK 33

D.

Finally, we address the district court’s conclusion that

City Attorney Feuer and LAPD Chief Officer Beck were

entitled to qualified immunity. Wright sued those officials

only in their official capacities. Qualified immunity is,

however, “available only to government officials sued in

their individual capacities” and is “not available to those

sued only in their official capacities.” Cmty. House, Inc. v.

City of Boise, Idaho, 623 F.3d 945, 965 (9th Cir. 2010). We

thus reverse the grant of qualified immunity for these

defendants.

III.

Defendants also urge us to affirm on alternative grounds.

We reject each argument in turn.

A.

First, Defendants argue that a § 1983 claim cannot be

predicated on a breach of a plea agreement. This argument

misconstrues Wright’s claims for several reasons. For one,

the City was not a party to the agreement, so summary

judgment cannot be affirmed in its favor on this ground.

Second, Wright is alleging constitutional violations

independent of the plea agreement: the plea agreement

neither created Wright’s possessory interest in the firearms

nor is reference to it necessary for the resolution of his

constitutional claims.

B.

We also reject Defendants’ contention that they are

entitled to “derivative, quasi-judicial immunity” because,

once the LAPD seized the contested firearms by warrant,

34 WRIGHT V. BECK

“the City” acted as a court custodian subject to court

orders. 21 That immunity extends to nonjudicial officers

“only if they perform official duties that are functionally

comparable to those of judges, i.e., duties that involve the

exercise of discretion in resolving disputes.” In re Castillo,

297 F.3d 940, 948 (9th Cir. 2002). Defendants fail to show,

however, that Edwards performed a duty that was

functionally comparable to a judge by keeping custody of

Wright’s firearms. Defendants also do not show Edwards

performed a functionally comparable duty of a judge when

they sought a court order to destroy the property. This

immunity does not apply under this theory.

Nor is Edwards entitled to quasi-judicial immunity

because he performed “purely administrative acts.” See id.

at 952. That immunity applies when a non-judicial officer

performs a “non-discretionary or administrative function . . .

at the explicit direction of a judicial officer.” Zoretic v.

Darge, 832 F.3d 639, 644 (7th Cir. 2016). Defendants

appear to suggest that they are entitled to immunity under

this theory because they complied with a court order to

destroy the firearms. Defendants fail to cite any case,

however, that shows that the immunity extends to state

actors who sought and obtained the order improperly in the

first instance. Also, Edwards exercised discretion in

deciding when or whether to seek the order permitting

destruction of the firearms. We thus reject this contention.

21

Defendants do not specify to whom the immunity applies, but

rather appear to suggest it applies to all of them. Defendants, however,

provide no authority for the proposition that a municipality or individuals

sued in their official capacity can qualify for this kind of immunity. In

any event, we need not resolve this issue because, even assuming the

immunity can apply in such circumstances, Defendants fail to show that

the immunity applies.

WRIGHT V. BECK 35

C.

Defendants also argue that Wright cannot bring a § 1983

claim because he released his property interest in the

firearms once he signed the plea agreement. They argue that

Wright abandoned his possessory interests because he

consented to the LAPD keeping the firearms and deciding

whether he was the lawful owner of the firearms.

Defendants are wrong for several reasons, but the most

important one is they overstate the LAPD’s power to decide

Wright’s ownership claims. The plea agreement did not

provide the LAPD with unfettered control over the guns. To

be sure, the agreement allowed the LAPD to make an initial

ownership decision, but Wright could challenge that

determination by filing a motion to compel return of his

firearms in a court—which he did. Thus, contrary to

Defendants’ suggestion, Wright continued to maintain a

legitimate possessory interest in the firearms.

Defendants also argue that California Penal Code

sections 34000 and 18275 divested Wright of his ownership

interest after the one-year period expired. But, for the

reasons explained above in Part II.A., this claim fails

because neither provision diminished Wright’s possessory

interests.

D.

Defendants also argue that a state court order precludes

us from deciding whether due process entitled Wright to

notice of the ex parte application for a destruction order.

Defendants specifically cite the Los Angeles Court’s

decision in In re Complaint of Michel & Associates, P.C.,

No. BH011834 (Sept. 18, 2018). We are not persuaded.

36 WRIGHT V. BECK

“[A] federal court considering whether to apply issue

preclusion based on a prior state court judgment must look

to state preclusion law.” McInnes v. California, 943 F.2d

1088, 1092–93 (9th Cir. 1991). In California, “[i]ssue

preclusion prohibits the relitigation of issues argued and

decided in a previous case, even if the second suit raises

different causes of action.” DKN Holdings LLC v. Faerber,

352 P.3d 378, 386 (Cal. 2015) (citation omitted). “[I]ssue

preclusion applies: (1) after final adjudication (2) of an

identical issue (3) actually litigated and necessarily decided

in the first suit and (4) asserted against one who was a party

in the first suit or one in privity with that party.” Id. at 387.

As for the second requirement, the party seeking to assert

issue preclusion must show that each proceeding contained

“identical factual allegations.” Lucido v. Superior Court,

795 P.2d 1223, 1225 (Cal. 1990) (quotation marks omitted).

The factual allegations considered in Michel &

Associates were not identical to ones presented here, nor

were they necessary to the court’s final determination. In

Michel & Associates, a gun-rights group, the California Rifle

and Pistol Association, of which Wright is a member, sent a

letter to the Los Angeles Court notifying it of what it deemed

to be the LAPD’s “inappropriate and illegal practice of

obtaining invalid court orders relating to LAPD’s disposition

of seized property.” The court issued an Order to Show

Cause, asking the parties to brief, among other issues,

“[w]hether [the Los Angeles Court] should adopt a policy

requiring a police agency seeking an order to dispose of

property seized under a search warrant where no criminal

case has been filed to give notice of the application for the

order to likely claimants of the seized property pursuant to

[California] Penal Code section 1536.” The court ultimately

decided that, under Perkins, the court need not adopt such a

policy.

WRIGHT V. BECK 37

Wright’s claim here, however, addresses a different issue

involving different factual allegations. As explained above,

Wright alleges a due process violation because he was never

given notice of Edwards’s intent to apply ex parte for an

order permitting destruction of Wright’s firearms when he

continued to assert an ownership interest in them. What due

process demands on these facts is different from the issue

decided in Michel & Associates, where the court was

considering adopting a prospective rule that universally

provided notice to all “people or entities likely to claim an

interest in the property.”

We thus reject this argument. 22

IV.

Finally, because we reverse the district court’s grant of

summary judgment on Wright’s Fourteenth Amendment due

process claim, we reverse the district court’s grant of

summary judgment on his failure-to-train claim, which the

court characterized as derivative of Wright’s due process and

Fourth Amendment claims, and remand for further

proceedings consistent with this opinion.

V.

Because a rational trier of fact could find that Wright’s

due process rights were violated and that Edwards was not

entitled to qualified immunity, we reverse the district court’s

grant of summary judgment on this claim and his Monell

22

Because we conclude the issues were not identical, we need not

decide whether Wright, as a member of the California Rifle and Pistol

Association, was in “privity” with it. See Rodriguez v. City of San Jose,

930 F.3d 1123, 1130 (9th Cir. 2019), pet. for cert. filed, No. 19-1057

(Feb. 21, 2020).

38 WRIGHT V. BECK

failure-to-train claim against Beck, Feuer, and the City. We

affirm the judgment as to Aubry and Tompkins. We remand

for proceedings consistent with this opinion. 23

AFFIRMED in part, REVERSED in part, and

REMANDED. Appellant shall recover his costs on appeal.

23

In light of Judge Real’s passing, we need not address Wright’s

request to reassign the case on remand.