Paul Kinnison v. City of San Antonio

Case: 11-50333 Document: 00511872526 Page: 1 Date Filed: 05/31/2012

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

May 31, 2012

No. 11-50333 Lyle W. Cayce

Clerk

PAUL CHANCE KINNISON,

Plaintiff – Appellee

v.

CITY OF SAN ANTONIO,

Defendant – Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:08-CV-421

Before REAVLEY, ELROD, and HAYNES, Circuit Judges.

PER CURIAM:*

The City of San Antonio, Texas, (the “City”) appeals from the district

court’s grant of summary judgment in favor of Paul Chance Kinnison on his

Fourth and Fourteenth Amendment claims brought under 42 U.S.C. § 1983 and

subsequent jury-determined damages award. On the state of the record, we

conclude that Kinnison did not establish that the City’s actions were

unreasonable as a matter of law. We therefore VACATE the judgment below

and REMAND for proceedings consistent with this opinion.

*

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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I. Facts and Procedural History

On April 8, 2008, Alice Guajardo, a Dangerous Premises Inspector for the

City, investigated a house and accessory structure at 332 East Myrtle (the

“Property”) in response to a dangerous-premises hotline phone call. Guajardo’s

investigation revealed that the Property had fire damage to and deterioration

of its roof, walls, and foundation. She determined that the Property “pos[ed] [an]

imminent danger to public health and safety,” and she reported the Property to

Ramiro Carrillo, the City’s Senior Building Inspector. Carrillo’s inspection

confirmed Guajardo’s initial findings, and he determined that the Property’s

“extremely poor structural condition” required “immediate demolition.”

Guajardo facilitated the demolition pursuant to San Antonio Code of

Ordinances § 6-175 (the “Ordinance”). At the time of Guajardo’s inspection, the

Ordinance provided:

Sec. 6-175. Emergency cases; summary abatement by city officials.

(a) In cases where it appears to the code compliance director, the

fire chief, or the director of development services, that due to one or

more structural conditions threatening the structural integrity of a

building or structure, there is clear and imminent danger to the life,

safety or property of any person unless a dangerous building or

structure, as defined in this article, is immediately repaired or

demolished, especially in cases where such a very dangerous

building or structure, is located within one thousand (1,000) feet of

a public or private elementary school, middle school, high school, or

a state recognized day care center, anyone of those officials (the

official) shall execute the immediate vacation and or repair or

demolition of such very dangerous building or structure, regardless

of the date of its construction. Such summary action shall require

concurrence from at least one other of the aforesaid officials. In the

case of summary demolition, concurrence of the director of

development services shall be required. Such concurrence shall

include a determination that under the circumstances no other

abatement procedure is reasonably available except demolition. The

official taking action shall thereafter immediately provide notice to

the [Dangerous Structures Determination Board (“DSDB”)], of the

2

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accomplished abatement; and to the owner and

lienholders/mortgagees of said dangerous building. All costs,

including asbestos and special or hazardous waste removal/disposal,

of such emergency summary repair, vacation, or demolition of such

dangerous building shall be collected in the manner provided by

law.

(b) The foregoing emergency abatement action shall be executed not

later than seventy two (72) weekday hours, exclusive of weekends

and holidays, after the official views the subject building or

structure.

(c) The foregoing emergency abatement action is hereby

acknowledged as being outside state statutory prescriptions. The

authority for this section is asserted under the City of San Antonio

Charter as power of a home-rule city, so provided by the constitution

of the State of Texas.

(d) Upon ordering and executing emergency abatement by

demolition, the city official responsible shall make an appropriate

affidavit evidencing his/her actions. Copies of the affidavit shall be

maintained among the official records of the respective official’s

department and in the minutes records of the DSDB for two (2)

years.

Guajardo identified the Property’s owner as the Deepak Land Trust

(“Deepak”),1 took photos and a video of the Property, prepared certain City

inspection forms, mapped the Property’s location to the nearest school,

submitted an environmental survey report, arranged for the cessation of gas and

electric service, and notified the City’s Historic Preservation Office and the

relevant City Councilwoman. Guajardo also informed Deepak’s trustee, who

reported that he had recently sold the Property, but did not have contact

information for its new owner. Guajardo also checked if anyone had filed a work

permit for the Property, but the last such permit dated to 2006. Strangely, in

1

Bexar County Appraisal District records “current” to April 6, 2008, showed that

Deepak owned the Property.

3

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Kinnison’s view, Guajardo never examined county deed records where, Kinnison

contends, she would have found a newly recorded deed reflecting the recent sale

of which she had been advised.

Per the Ordinance, the City’s Director of Development Services and

Director of Housing and Neighborhood Services executed affidavits declaring the

Property to be a “clear and imminent danger to the life, safety, and/or property

necessitating an immediate demolition.”2 On April 17, 2008, a demolition crew

arrived at the Property, encountering a contractor that Kinnison had hired to do

foundation repair work. Regardless, the Property was demolished.

Kinnison subsequently filed the underlying suit in state court, bringing a

host of state and federal claims. The City removed. Ultimately, the district

court granted summary judgment in favor of Kinnison only on his § 1983 claims

for violations of his Fourth Amendment right to be free from unreasonable

seizures and his Fourteenth Amendment procedural due process rights,

dismissing or granting summary judgment for the City on the remaining claims.

The parties dispute here only the claims on which Kinnison prevailed. A jury

trial on damages resulted in a $52,000 award in Kinnison’s favor. The district

court denied the City’s post-trial motions, and the City timely appealed.

II. Standard of Review

This court reviews a grant of summary judgment de novo, applying the

same standard as the district court. Gelin v. Hous. Auth. of New Orleans, 456

F.3d 525, 527 (5th Cir. 2006). Summary judgment is appropriate if the moving

party can show that “there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A

factual dispute is ‘genuine’ where a reasonable [factfinder] would return a

verdict for the non-moving party.” Chiu v. Plano Indep. Sch. Dist., 339 F.3d 273,

2

Kinnison does not challenge that these officials are two of the three decisionmakers

envisioned by the Ordinance.

4

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282 (5th Cir. 2003) (citation omitted). “An issue is material if its resolution could

affect the outcome of the action.” Weeks Marine, Inc. v. Fireman’s Fund Ins. Co.,

340 F.3d 233, 235 (5th Cir. 2003) (citing Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986)). In considering a summary judgment ruling, this court

views the evidence in the light most favorable to the nonmoving party. United

Fire & Cas. Co. v. Hixson Bros., 453 F.3d 283, 285 (5th Cir. 2006).

“Unsubstantiated assertions, improbable inferences, and unsupported

speculation,” however, “are not sufficient to defeat a motion for summary

judgment.” Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir. 2003).

III. A Factfinder Should Determine Whether the City

Violated Kinnison’s Constitutional Rights

A. The City Waived Monell

Under Monell v. Department of Social Services of the City of New York, 436

U.S. 658 (1978), and its progeny, the fact that a constitutional violation occurred

is ordinarily not enough to trigger municipal liability.3 Municipal liability also

requires proof of an “official policy,” a “final” policymaker, and policymaker

“knowledge” of, or “deliberate indifference” to, a risk of constitutional violations.

See, e.g., Burge v. St. Tammany Parish, 336 F.3d 363, 369-73 (5th Cir. 2003);

Piotrowski v. City of Houston, 237 F.3d 567, 578-83 (5th Cir. 2001). Here,

however, the City rested its entire § 1983 defense on whether Kinnison

established a constitutional violation, essentially collapsing the municipal-

liability inquiry into a single, dispositive question.4 Indeed, the City failed to

3

See also City of Canton v. Harris, 489 U.S. 378 (1989); City of St. Louis v. Praprotnik,

485 U.S. 112 (1988); Pembaur v. City of Cincinnati, 475 U.S. 469 (1986).

4

The City briefly contended in its motion to alter or amend judgment that Kinnison

“nowhere demonstrated a policymaker or an official policy as a matter of law entitling him to

summary judgment” and that there was insufficient evidence “for a reasonable jury to have

concluded that the City was liable on these elements under 42 U.S.C. § 1983.” That was too

little, too late. See, e.g., Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990) (“Motions

for a new trial or to alter or amend a judgment must clearly establish either a manifest error

5

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cite Monell in its briefs on appeal and expressly disavowed at oral argument—in

response to several questions—any reliance on the case and its principles. We

first determine, then, whether Monell’s requirements can be waived.

Although our circuit has not squarely addressed the issue, the weight of

circuit authority suggests that it can. See Ford v. Cnty. of Grand Traverse, 535

F.3d 483, 491-99 (6th Cir. 2008) (affirming summary judgment for plaintiff

where the municipality had “abandoned” deliberate-indifference arguments);

Kelly v. City of Oakland, 198 F.3d 779, 785 (9th Cir. 1999) (affirming § 1983

liability where municipality first raised Monell in reply to motion for new trial;

the argument, “if properly placed in issue, would have affected the course of the

jury trial”); Morro v. City of Birmingham, 117 F.3d 508, 514-16 (11th Cir. 1997)

(affirming summary judgment for plaintiff even though it was “extremely

doubtful” that the identified policymaker was a “final” policymaker; had the

municipality raised Monell, it could have been granted “judgment as a matter

of law . . . early in the proceedings”).5

We join these courts in concluding that, where the municipality in

question has clearly and unequivocally waived the protections of Monell, we can

of law or fact or must present newly discovered evidence. These motions cannot be used to

raise arguments which could, and should, have been made before the judgment issued.”)

(internal quotation marks and citation omitted; emphasis added). This is particularly true

where, as here, the City unequivocally waives the argument on appeal.

5

But see Smith v. Chi. Sch. Reform Bd. of Trs., 165 F.3d 1142, 1149 (7th Cir. 1999)

(“Monell does not create a ‘defense.’ It identifies an element of a plaintiff’s claim, so the

burden is on the plaintiff to demonstrate the essential policy or custom.” (citing Bd. of Cnty.

Comm’rs v. Brown, 520 U.S. 397, 403 (1997))).

The Seventh Circuit nonetheless allows municipalities to affirmatively waive certain

aspects of Monell. See, e.g., Evans v. City of Chicago, 513 F.3d 735, 741 (7th Cir. 2008) (“Thus,

the City waived its right under Monell not to be held liable in damages without proof that the

City by its ‘policy or custom’ caused the alleged constitutional violation.”) (citation omitted);

Lopez v. City of Chicago, 464 F.3d 711, 717 n.1 (7th Cir. 2006) (“The City . . . entered a Monell

waiver consenting to entry of judgment against it in the event ‘the finder of fact in this case

finds that any City of Chicago employee violated Plaintiff’s rights under the Constitution.’”).

6

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accept that waiver and treat those elements as satisfied.6 Municipalities once

enjoyed virtually absolute immunity from § 1983 liability. See Monell, 436 U.S.

at 663 (overruling Monroe v. Pape, 365 U.S. 167 (1961) (holding that

municipalities were not “persons” subject to § 1983)). Although Monell refined

this potentially draconian doctrine to permit recovery when “action pursuant to

official municipal policy of some nature caused a constitutional tort,” id. at 691,

it preserved municipal immunity against other claims. Id. at 691-94.

If the states may waive bedrock constitutional protections such as

sovereign immunity, however, we see no reason to prohibit cities within a state

from affirmatively discarding protections of statutory and judicial creation. Cf.

Clark v. Barnard, 108 U.S. 436, 447 (1883) (“The immunity from suit belonging

to a state, which is respected and protected by the constitution within the limits

of the judicial power of the United States, is a personal privilege which it may

waive at pleasure . . . .”). It also makes no difference whether waiver here more

properly concerns a question of law or fact. See Morro, 117 F.3d at 516 n.3 (“We

note that the City’s failure to preserve its Monell defense for trial is not excused

by the fact that . . . the issue of final policymaker status is a legal question for

the court, not the jury. Counsel may waive the right to have an issue decided by

failing to identify the issue to the court . . . regardless of whether the issue is a

legal or factual one.”). Accordingly, as below, the City’s liability rises and falls

with whether Kinnison can establish a constitutional violation.

B. Fourteenth Amendment Procedural Due Process Claim

The Supreme Court has “described ‘the root requirement’ of the Due

Process Clause as being ‘that an individual be given an opportunity for a hearing

before he is deprived of any significant property interest.’” Cleveland Bd. of

6

Cf. Wood v. Milyard, 132 S. Ct. 1826, 1830 (2012) (noting, in habeas context, that “[a]

court is not at liberty . . . to bypass, override, or excuse a State’s deliberate waiver of a

limitations defense.”) (citation omitted).

7

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Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (citation omitted). “Due process,”

however, “does not require that a property owner receive actual notice before the

government may take his property.” Jones v. Flowers, 547 U.S. 220, 226 (2006)

(citing Dusenbery v. United States, 534 U.S. 161, 170 (2002)). A state actor need

only provide “‘notice 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.’” Id. (citing Mullane v. Cent. Hanover

Bank & Trust Co., 339 U.S. 306, 314 (1950)).7

In “emergency situations,” moreover, notice and hearing requirements

yield to the exigencies of “summary administrative action.” Hodel v. Va. Surface

Mining & Reclamation Ass’n, 452 U.S. 264, 299-300 (1981) (collecting cases).

“[W]here a State must act quickly, or where it would be impractical to provide

predeprivation process, postdeprivation process satisfies the requirements of the

Due Process Clause.” Gilbert v. Homar, 520 U.S. 924, 931 (1997) (collecting

cases). “Protection of the health and safety of the public is a paramount

governmental interest which justifies summary administrative action. Indeed,

deprivation of property to protect the public health and safety is ‘[o]ne of the

oldest examples’ of permissible summary action.” Hodel, 452 U.S. at 300

(quoting Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 599 (1950)). In

such cases, “[t]he relevant inquiry is not whether a [summary action] order

should have been issued . . . , but whether the statutory procedure itself is

incapable of affording due process.” Id. at 302 (citation omitted).8

7

Although courts generally analyze procedural due process claims under the well-

known Mathews v. Eldridge balancing test, 424 U.S. 319, 335 (1976), the Supreme Court

clarified in Dusenbery that Mullane’s reasonable-under-the-circumstances standard applies

to such claims premised on allegedly inadequate notice. See 534 U.S. at 167-68.

8

See also Ewing, 339 U.S. at 599 (“Discretion of any official may be abused. Yet it is

not a requirement of due process that there be judicial inquiry before discretion can be

exercised. It is sufficient, where only property rights are concerned, that there is at some

stage an opportunity for a hearing and a judicial determination.” (collecting cases)).

8

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Kinnison challenged only the manner in which the City applied the

Ordinance in his specific case; he made no cognizable argument that the

Ordinance was facially unconstitutional.9 The Ordinance contains several

procedural protections. It requires that two of three designated City officials

concur that, “due to one or more structural conditions threatening [its]

structural integrity,” a specific property presents an “imminent danger to the

life, safety or property of any person.” Before demolition may occur, the officials

must also agree that “under the circumstances no other abatement procedure is

reasonably available.” The Ordinance also exists against a backdrop of the

City’s Residential Building Codes, which are based on International Building

Code standards. See San Antonio, Tex., Code of Ordinances part II, ch. 6

(“Buildings”). For summary judgment purposes, then, the Ordinance was

presumptively constitutional, and the City was permitted to rely upon it.

In the absence of a deficient procedural regime, a procedural due process

claim may nonetheless succeed if the state actor unreasonably decided to

summarily effect a property deprivation. See Patel v. Midland Mem. Hosp. &

Med. Ctr., 298 F.3d 333, 341 (5th Cir. 2002) (“When determining the amount of

process constitutionally due [the plaintiff] prior to the [property deprivation], the

key question is not whether [the plaintiff] was actually a danger, but whether

the [state actor] had reasonable grounds for suspending him as a danger.” (citing

9

In the substantive due process section of his motion for summary judgment, Kinnison

asserted that the Ordinance was “so vague, . . . so teleologically non-functional, and . . . so

arbitrarily applied” that it failed constitutional muster, contending primarily that it did not

define when a structure posed an “imminent danger.” However, the City’s Code of Ordinances

extensively defines “dangerous building,” § 6-156, and the Ordinance refers to “dangerous

buildings or structures.” The Ordinance, moreover, narrows the definition of “dangerous

buildings.” A “dangerous building” requiring summary abatement under the Ordinance is one

that has “one or more structural conditions threatening [its] structural integrity” and that

poses a “clear and imminent danger . . . unless . . . immediately repaired or demolished.” The

district court granted summary judgment for the City on Kinnison’s substantive due process

claim, and Kinnison did not cross-appeal.

9

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Gilbert, 520 U.S. at 933)). Evaluating such claims, however, requires striking

a delicate balance. Generally, a state actor’s adherence to its summary-action

procedures deserves deference. See, e.g., Freeman v. City of Dallas, 242 F.3d

642, 653 & n.18 (5th Cir. 2001) (en banc) (observing that the “ultimate test of

reasonableness is fulfilled . . . by the City’s adherence to its ordinances and

procedures as a prelude to” abatement; “a showing of unreasonableness in the

face of the City’s adherence to its ordinance is a ‘laborious task indeed’” (quoting

Soldal v. Cook Cnty., 506 U.S. 56, 71 (1992))). Courts must avoid “subjecting a

decision to invoke an emergency procedure to an exacting hindsight analysis,

where every mistake, even if made in good faith, becomes a constitutional

violation.” Catanzaro v. Weiden, 188 F.3d 56, 63 (2d Cir. 1999) (reh’g op.).

Courts instead should exercise restraint and second-guess an emergency action

only when shown to be arbitrary or an abuse of discretion. See WWBITV, Inc.

v. Vill. of Rouses Point, 589 F.3d 46, 51 (2d Cir. 2009) (citation omitted).

With these principles in mind, we turn to the district court’s procedural

due process ruling. The district court granted Kinnison summary judgment

because it concluded that Kinnison’s identity was readily available to the City;

that the City was required to give Kinnison at least constructive notice of the

demolition; that the passage of nine days between inspection and demolition was

near-dispositive evidence that the City’s imminent-danger determination was

unreasonable; and that pre-deprivation process was available under the Texas

nuisance-abatement statute.10

10

The district court also was concerned that cities could circumvent Texas nuisance-

abatement procedural protections merely by characterizing a property as an “imminent

danger” rather than a “nuisance.” The Supreme Court has suggested an antidote to this

concern. See Hodel, 452 U.S. at 302 & n.46 (observing that courts may step in “if a pattern of

abuse and arbitrary action [is] discernible from review of an agency’s administration of a

summary procedure”).

10

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Texas nuisance-abatement law does require municipalities to search deed

records to ascertain the owner’s identity and to provide owners notice of pending

nuisance actions. See Tex. Loc. Gov’t Code § 214.001(q)(1). It is undisputed that

the City gave no notice of any kind to Kinnison and never searched the deed

records to find him, despite knowing that the property had a new owner.

The City contends that the imminent-danger determination justified

proceeding without notice or process. See id. § 214.002.11 If that determination

was unreasonable, however, the City would have been required to give Kinnison

notice, and he would have had the right to administratively challenge any

threatened property deprivation. Thus, the City’s actions may be excused for

procedural due process purposes only if the imminent-danger determination was

not an abuse of discretion. See Patel, 298 F.3d at 341 (emphasizing that a

procedural due process inquiry focuses on whether the state actor’s danger

determination was reasonable, not on whether an actual danger existed).

Turning to the record here, the City points to evidence that City employees

carried out the Ordinance in light of the City’s building-related standards and

based on evidence gathered from multiple inspections of the Property. The

employees were certified inspectors and authorized to make demolition

recommendations.12 In their view, the Property posed an “imminent danger”

11

Section 214.001 and its associated statutes govern, among other things, the

“demolition” of “dilapidated” and “substandard” structures that are “unfit for human

habitation and a hazard to the public health, safety, and welfare.” Tex. Loc. Gov’t Code §

214.001(a)(1). These include procedural protections such as a conjunctive list of records a

municipality must search to identify a property’s true owner, id. § 214.001(q), pre-deprivation

notice and hearing requirements, id. § 214.001(c)-(h), ordinance-content standards, id. §

214.001(b), and an express judicial-review provision. Id. § 214.0012.

Section 214.002, however, applies “[i]f the governing body of a municipality finds that

a building . . . is likely to endanger persons or property.” Id. § 214.002(a) (emphasis added).

Unlike section 214.001—and reflecting the exigencies of summary abatement—section 214.002

contains none of the above procedural protections.

12

Kinnison attacks the inspectors’ credentials, but this is insufficient to create a fact

issue as to the imminent-danger determination. See Patel, 298 F.3d at 340 n.14.

11

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under the Ordinance. The appropriate officials concurred with that assessment

and determined that summary abatement was the only available method to deal

with the threat. The City therefore arguably complied with the Ordinance,13 a

fact that normally would counsel that we reverse and render judgment in the

City’s favor.14 See Traylor v. City of Amarillo, 492 F.2d 1156, 1158 (5th Cir.

1974) (noting, in nuisance abatement case, that where “the city proceeded under

authority of state law and pursuant to local ordinances which not only explicitly

define[d] the procedures to be followed, but also outline[d] with some specificity

the conditions under which property [was] subject to demolition,” the facts

presented “a far cry from . . . ad hoc, summary action”).

We cannot do so, however, because the record contains evidence suggesting

that the City’s imminent-danger determination was an abuse of discretion. The

13

Kinnison argues that the two officials who ordered the demolition failed to personally

“view” the Property, making the City’s actions unreasonable per se. The Ordinance requires

that demolition occur “not later than seventy two (72) weekday hours . . . after the official

views the subject building or structure.” The officials apparently based their determinations

on inspection reports, structural assessments, photographs, and a video. Because we conclude

that a fact issue exists concerning the reasonableness of the City’s imminent-danger

determination, we do not address the consequences of the City’s potential noncompliance with

the Ordinance’s “viewing” requirement, which the district court may consider on remand.

Kinnison also suggests that the City violated the Ordinance because it effected the

demolition more than seventy-two hours after Guajardo viewed the Property. The Ordinance,

however, uses the phrase “the official” as a term of art, limiting its reference to “the code

compliance director, the fire chief, or the director of development services.” Guajardo was not

one of these officials. Accordingly, whatever effect the 72-hour temporal limitation on

“viewing” may have, it depends on the conduct of officials other than Guajardo. As to any

defects in the Ordinance itself, Kinnison does not facially challenge the Ordinance on appeal.

14

The City argues that Kinnison was required to plead and prove the inadequacy of

state-law remedies in order to bring a procedural due process claim. See Parratt v. Taylor, 451

U.S. 527 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327 (1986).

Because Kinnison complains of a property deprivation effected by City employees acting with

authorization and pursuant to procedures enacted by the City, however, Parratt and its

progeny do not apply here. See Zinermon v. Burch, 494 U.S. 113, 138 (1990) (rejecting

Parratt’s application where the state actor “delegated to [its employees] the power and

authority to effect the” alleged deprivation and the “concomitant duty to initiate the [state-

law] procedural safeguards”) (internal quotation marks and citation omitted).

12

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district court’s due process ruling properly focused on the nine-day delay

between inspection and demolition. Such delays can serve as evidence of

unreasonableness if lengthy enough to call into question “the existence vel non

of an emergency.” Burtnieks v. City of New York, 716 F.2d 982, 988 (2d Cir.

1983) (three-month delay); see also Kornblum v. St. Louis Cnty., 72 F.3d 661, 664

(8th Cir. 1995) (en banc) (delay of over a year).

Although closer to the short delays in WWBITV and Catanzaro, we cannot

hold that the nine-day delay here was brief enough to make the City’s imminent-

danger determination reasonable as a matter of law.15 Among other things, the

record suggests that the City had previously determined the Property to be an

imminent danger in 2006 for largely the same reasons justifying the 2008

demolition.16 The Property, however, was not summarily abated after the 2006

determination in part because the City informed the Property’s then-owner of

the deficiencies, and he made repairs significant enough to forestall demolition.

Kinnison, however, was not afforded the same opportunity in 2008, despite the

fact that the same structural deficiencies identified in 2006 had yet to cause the

Property’s ostensibly “imminent” collapse. The City, moreover, effected the

demolition even though Kinnison’s contractor was on-site and repairing the

Property when the demolition crew arrived. However faithfully the City adhered

to the Ordinance—an issue that may be in dispute—a reasonable factfinder

could conclude that it was an abuse of discretion to classify the Property as an

imminent danger based on long-present factors and then to summarily abate the

Property in the face of the owner’s rehabilitation efforts. Cf. Flowers, 547 U.S.

15

The demolitions in WWBITV and Catanzaro were effected within forty-eight hours.

16

In 2006, another City inspector identified the same structural defects as Guajardo

and Carrillo and determined that the Property had partially collapsed and had “the potential

of further collapse onto the neighbors [sic] premises.” Besides the then-owner’s repairs, the

record suggests that demolition was cancelled because of historical-preservation concerns.

13

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at 229-31 (faulting state actor, in adequacy-of-notice case, for not altering course

after learning that the chosen method of notice had failed; due process may

require “further reasonable steps” under the circumstances).

On the other hand, it was undisputed that the Property was damaged.

The inspectors conducted a reasonably thorough investigation, and the City

arguably adhered to the Ordinance. A factfinder could also reasonably conclude

that these facts, among others, outweigh any evidence of procedural

unreasonableness. See Patel, 298 F.3d at 340 & n.14 (noting that, even if “a

more thorough investigation would have” dispelled the existence of a danger,

that fact generally is insufficient to make unreasonable a determination based

on evidence gathered as part of a good faith investigation). Thus, Kinnison’s

procedural due process claim should have been allowed to proceed to trial.17

17

Kinnison urges us to affirm based on the Texas Supreme Court’s recent decision in

City of Dallas v. Stewart, 361 S.W.3d 562 (Tex. 2012) (reh’g op.). Stewart held that, “[i]n the

context of a property owner’s appeal of an administrative nuisance determination, independent

court review is a [Texas] constitutional necessity.” Id. at 564. In Kinnison’s view, Stewart

mandates affirmance because the City failed to afford him pre-deprivation judicial review.

Kinnison also argues that Texas law requires municipalities to reaffirm nuisance

determinations on the day of demolition. See City of Houston v. Crabb, 905 S.W.2d 669 (Tex.

App.—Houston [14th Dist.] 1995, no writ).

Section 1983, however, is concerned with federal constitutional violations, and we

examine the constitutional adequacy of state procedures under federal law. See, e.g., Traylor,

492 F.2d at 1158 (“Whatever the status of these decisions as statements of the law of Texas,

we do not believe that such a [pre-deprivation judicial review] requirement is imposed by the

federal constitutional guarantee of due process.”).

Stewart nonetheless does lend persuasive authority to the due process analysis

deployed here. It notes that takings-style claims “typically involve mixed questions of fact and

law.” 361 S.W.3d at 578. As to the factual component, “initial questions of historical

fact—whether or not the structure had foundation damage, for example,” lie “within the

competence of the administrative agency and are accorded deference.” Id. The next step,

however, “applies those historical facts to the legal standards,” creating “questions of law that

determine the constitutionality of a property’s demolition” and that “are outside the

competence of administrative agencies.” Id. Thus, for our purposes, the presence of an

investigation does not require us to conclude that the imminent-danger determination

satisfied procedural due process as a matter of law.

14

Case: 11-50333 Document: 00511872526 Page: 15 Date Filed: 05/31/2012

No. 11-50333

C. Fourth Amendment Unreasonable Seizure Claim

“As the text of the Fourth Amendment indicates, the ultimate measure of

the constitutionality of a government search is ‘reasonableness.’” Vernonia Sch.

Dist. 47J v. Acton, 515 U.S. 646, 652 (1995). “[A] ‘reasonableness’

determination[] involves a balancing of all relevant factors,” Whren v. United

States, 517 U.S. 806, 817 (1996), and for Fourth Amendment purposes generally

“requires no more of government officials than that of due process of law. Both

constitutional provisions recognize an exigency exception, and, thus, lead to no

practical distinction in” the summary action context. Flatford v. City of Monroe,

17 F.3d 162, 170 (6th Cir. 1994) (citing United States v. James Daniel Good Real

Prop., 510 U.S. 43 (1993)); see also Freeman, 242 F.3d at 652 (noting that

Supreme Court precedent “forecasts, even if it does not compel, that a balancing

of the public and private interests at stake will favor the public interest in

nuisance abatement after the conclusion of adequate administrative

proceedings” (citing GM Leasing Corp. v. United States, 429 U.S. 338 (1977))).

We see no reason to depart from the general practice of tethering the

outcome of the Fourth Amendment inquiry to whether the property deprivation

offended due process. In light of the procedural due process analysis above, we

conclude that the district court should not have granted summary judgment on

Kinnison’s Fourth Amendment claim. Cf. Samuels v. Meriwether, 94 F.3d 1163,

1168 (8th Cir. 1996) (“[A]n abatement carried out in accordance with procedural

due process is reasonable in the absence of any factors that outweigh

governmental interests.”) (citations omitted).

IV. Conclusion

Because a fact issue exists as to the reasonableness of the City’s imminent-

danger determination, we VACATE the judgment below and REMAND for

15

Case: 11-50333 Document: 00511872526 Page: 16 Date Filed: 05/31/2012

No. 11-50333

proceedings consistent with this opinion. We therefore need not reach the City’s

other arguments presented on appeal.18

18

In the event that the factfinder imposes liability on the City, the factfinder should

also determine the damages flowing from that conduct. As a result, we vacate the entirety of

the judgment such that the City’s challenges to the original damages award are now moot.

16