Petition for Writ of Certiorari — City of Los Angeles, California, et al., Petitioners v. Lamya Brewster

NO.

In the Supreme Court of the United States

THE CITY OF LOS ANGELES, et al.,

v.

LAMYA BREWSTER,

Petitioners,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

MICHAEL N. FEUER

City Attorney

JAMES P. CLARK

Chief Deputy City Attorney

BLITHE S. BOCK

Assistant City Attorney

GABRIEL S. DERMER

Assistant City Attorney

MICHAEL M. WALSH

Deputy City Attorney

Counsel of Record

200 North Main Street, Room 700

City Hall East

Los Angeles, California 90012-4130

(213) 978-2209

michael.walsh@lacity.com

Attorneys for Petitioners

City of Los Angeles, Los Angeles Police

Department and Chief Charlie Beck

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTION PRESENTED

A circuit split has developed over the meaning of

“seizure” in the Fourth Amendment and whether it

only refers to the actual seizure of personal property,

i.e. the taking of possession, or if it also extends to the

continued retention of property already lawfully seized.

Most of the circuit courts have concluded that the

Fourth Amendment, by its own express terms, only

applies to the actual seizure of property, and that, once

lawfully seized, due process governs the continued

possession and the timing and process for the

property’s return. The Ninth Circuit has instead

extended the definition of “seizure” to refer to the

entire period of possession, so that property is

effectively being re-seized every moment it is in the

continued possession of a public entity, requiring the

continued reassertion of Fourth Amendment grounds

for each successive “seizure.”

The question presented is:

Assuming that property is lawfully seized by a

public entity in compliance with Fourth

Amendment requirements, what constitutional

standard applies for the continued possession of the

property and for the timing and process of returning

the property?

ii

PARTIES TO THE PROCEEDING

Petitioners include City of Los Angeles, the Los

Angeles Police Department (“LAPD”), and Los Angeles

Chief of Police Charles Beck, who were defendants

below. Respondent includes the natural person Lamya

Brewster, plaintiff below.

iii

TABLE OF CONTENTS

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . vi

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . 3

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

PERTINENT CONSTITUTIONAL AND

STATUTORY PROVISIONS . . . . . . . . . . . . . . . . 4

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 5

A. California Vehicle Code Section 14602.6.

5

B. Statement of Facts. . . . . . . . . . . . . . . . . . . 6

C. District Court Proceedings and Court of

Appeals Decision. . . . . . . . . . . . . . . . . . . . 8

REASONS FOR GRANTING CERTIORARI . . . . . 10

I.

The Ninth Circuit Decision Is Inconsistent

with the Decisions of this Court. . . . . . . . . . 10

II.

The Ninth Circuit Decision Presents a Direct

Circuit Conflict. . . . . . . . . . . . . . . . . . . . . . . 15

A. A majority of circuit courts employ a plain

reading of the Fourth Amendment. . . . . 15

1. Six circuits support the Lee decision in

addressing property seizures. . . . . . . 16

iv

2. Three additional circuits have rejected

a proposed “continuing seizure”. . . . . 20

B. The other circuit decisions are consistent

with the California state courts. . . . . . . . 23

III.

The Issue in Conflict Is Recurring and of

Great Practical Importance. . . . . . . . . . . . . . 24

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

APPENDIX

Appendix A Opinion in the United States Court of

Appeals for the Ninth Circuit

(June 21, 2017) . . . . . . . . . . . . . . . App. 1

Appendix B Judgment in the United States

District Court, Central District of

California

(March 19, 2015) . . . . . . . . . . . . App. 10

Appendix C Order: (1) Granting Defendants’

Motion to Dismiss (Doc. No. 33);

(2) Denying Plaintiff’s Motion for

Class Certification (Doc. No. 26): and

(3) Denying Plaintiff’s Motion for

Preliminary Injunction (Doc. No. 28)

(In Chambers) in the United States

District Court, Central District of

California

(February 27, 2015) . . . . . . . . . . App. 11

Appendix D Order Denying Petition for Rehearing

En Banc in the United States Court of

Appeals for the Ninth Circuit

(August 23, 2017) . . . . . . . . . . . . App. 28

v

Appendix E California Vehicle Code

§ 14602.6 . . . . . . . . . . . . . . . . App. 29

California Vehicle Code

§ 22852 . . . . . . . . . . . . . . . . . App. 38

LAPD’s Special Order No. 7

(Impound Policy) . . . . . . . . . . . . App. 41

vi

TABLE OF AUTHORITIES

CASES

Ahlers v. Rabinowitz,

684 F.3d 53 (2d Cir. 2012) . . . . . . . . . . . . . . . . . 18

Albright v. Oliver,

510 U.S. 266 (1994) . . . . . . . . . . . . . . . . . . . . . . 24

Ali v. Ramsdell,

423 F.3d 810 (8th Cir. 2005) . . . . . . . . . . . . . . . 19

Alviso v. Sonoma County Sheriff’s Dept.,

186 Cal. App. 4th 198 (2010) . . . . . . . . . . . . . 5, 23

Becker v. Kroll,

494 F.3d 904 (10th Cir. 2007) . . . . . . . . . . . 22, 24

Brewster v. Beck,

859 F.3d 1194 (9th. Cir 2017) . . . . . . . . . . . . . . . 3

Brewster v. City of Los Angeles,

No. 5:14-cv-02257-JGB-SP

(C.D. Cal. Feb. 27, 2015) . . . . . . . . . . . . . . . . . . . 3

Brothers v. Klevenhagen,

28 F.3d 452 (5th Cir. 1994) . . . . . . . . . . . . . 21, 24

Brower v. County of Inyo,

489 U.S. 593 (1989) . . . . . . . . . . . . . . . . . . . . . . 11

Byrd v. Stewart,

811 F.2d 554 (11th Cir. 1987) . . . . . . . . . . . . . . 19

Cal. v. Hodari D.,

499 U.S. 621 (1991) . . . . . . . . . . . . . . . . . . passim

Case v. Eslinger,

555 F.3d 1317 (11th Cir. 2009) . . . . . . . . . . . . . 19

vii

City of West Covina v. Perkins,

525 U.S. 234 (1999) . . . . . . . . . . . . . . . . . . . 11, 12

DeNault v. Ahern,

857 F.3d 76 (1st Cir. 2017) . . . . . . . . . . . . . . . . 17

Fox v. Van Oosterum,

176 F.3d 342 (6th Cir. 1999) . . . . . . . . . . . . . . . 18

Gilmore v. City of Minneapolis,

837 F.3d 827 (8th Cir. 2016) . . . . . . . . . . . . . . . 19

Gonzalez v. Village of West Milwaukee,

671 F.3d 649 (7th Cir. 2012) . . . . . . . . . . . . . . . 16

Gutierrez v. City of San Antonio,

139 F.3d 441 (5th Cir. 1998) . . . . . . . . . . . . . . . 21

Hopkins v. City of Bloomington,

2013 U.S. Dist. LEXIS 137392

(D. Minn 2013) . . . . . . . . . . . . . . . . . . . . . . . 18, 19

Lee v. City of Chicago,

330 F.3d 456 (7th Cir. 2003) . . . . . . . . . . . passim

Manuel v. City of Joliet,

137 S. Ct. 911 (2017) . . . . . . . . . . . . 12, 13, 14, 25

Nieves v. McSweeney,

241 F.3d 46 (1st Cir. 2001) . . . . . . . . . . . . . . . . 25

Riley v. Dorton,

115 F.3d 1159 (4th Cir. 1997) . . . . . . . . . . . 21, 24

Salazar v. City of Maywood,

414 Fed. Appx. 73 (9th Cir. 2011) . . . . . . . . . . . . 9

Samples v. Brown,

146 Cal. App. 4th 787 (2007) . . . . . . . . . . . . . . . 23

viii

Schneyder v. Smith,

653 F.3d 313 (3rd Cir. 2011) . . . . . . . . . . . . . . . 15

Shaul v. Cherry Valley-Springfield Central School

District,

363 F.3d 177 (2d Cir. 2004) . . . . . . . . . . . . . 17, 18

Smith v. Santa Rosa Police Dept.,

97 Cal. App. 4th 546 (2002) . . . . . . . . . . . . . . . . . 6

Smith v. Santa Rosa Police Dept.,

97 Cal. App. 4th 546 (2002) . . . . . . . . . . . . . . . . 23

Soldal v. Cook County,

506 U.S. 56 (1992) . . . . . . . . . . . . . . . . . . . . . . . 14

Terry v. Ohio,

392 U.S. 1 (1968) . . . . . . . . . . . . . . . . . . . . . . . . 13

Thompson v. Petaluma Police Dep’t,

231 Cal. App. 4th 101 (2014) . . . . . . . . . . . . . . . 23

Thompson v. Whitman,

85 U.S. 457 (1873) . . . . . . . . . . . . . . . 1, 11, 16, 22

United States v. Jacobsen,

466 U.S. 109 (1984) . . . . . . . . . . . . . . . . 12, 13, 14

United States v. McRae,

702 F.3d 806 (5th Cir. 2012) . . . . . . . . . . . . 21, 22

United States v. Place,

462 U.S. 696 (1983) . . . . . . . . . . . . . . . . 12, 13, 14

United States v. Watson,

423 U.S. 411,446 . . . . . . . . . . . . . . . . . . . . . . . . 20

Wilkins v. Gaddy,

559 U.S. 34 (2010) . . . . . . . . . . . . . . . . . . . . . . . 21

ix

CONSTITUTION

U.S. Const. amend IV . . . . . . . . . . . . . . . . . . . passim

U.S. Const. amend V . . . . . . . . . . . . . . . . . . . 3, 17, 22

U.S. Const. amend XIV . . . . . . . . . . . . . . . . . 3, 21, 22

STATUTES AND RULES

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 4

42 U.S.C. §1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 8

California Vehicle Code

§ 14602.6 . . . . . . . . . . . . . . . . . . . . . . . . . . passim

§ 14602.6(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

§ 14602.6(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

§ 14602.6(d)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

§ 14607.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

§ 14607.4(b) through (e) . . . . . . . . . . . . . . . . . . . . 5

§ 14607.4(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

§ 22852 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6

§ 22852(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Fed. R. Crim. P. 41(g) . . . . . . . . . . . . . . . . . . . . . . . 12

Sup. Ct. R. 10(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Sup. Ct. R. 10(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Sup. Ct. R. 13.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

x

OTHER AUTHORITIES

2 J. Bouvier, A Law Dictionary (6th ed. 1856) . . . . 10

2 N. Webster, An American Dictionary of the

English Language (1828) . . . . . . . . . . . . . . . . . . 10

Webster’s Third New International Dictionary

(1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

1

INTRODUCTION

The Fourth Amendment protects “against

unreasonable . . . seizures” of property. Based on the

previous holdings of this Court and a plain reading of

the Fourth Amendment, the majority of circuit courts

have limited application of the Fourth Amendment to

its express terms, i.e., to the actual seizure of property.

The Ninth Circuit is now in conflict with the consensus

of circuit courts through its attempt to expand the

definition of “seizure” to include the continued

possession of property after it has been lawfully seized.

After the completion of a lawful seizure, does the

continued retention of property become a new and

repeating seizure governed by the Fourth Amendment,

or does due process govern the continuing possession

and return of the property? Only this Court can resolve

the division between the circuit courts, and reaffirm

the plain text of the Fourth Amendment.

By long-standing use, the term “seizure” refers to

the specific action of taking custody or control over a

person or property, in contrast to the subsequent

possession of that property. See Thompson v. Whitman,

85 U.S. 457, 469-71 (1873) (“A seizure is a single act,

and not a continuous fact”), and Cal. v. Hodari D., 499

U.S. 621, 624 (1991) (seizure refers to “taking

possession”). (And see post at 10-12). Contrary to this

Court’s decisions, the other circuit courts, and even

common word usage, the Ninth Circuit seeks to

redefine “seizure” to also include the subsequent

retention or possession which occurs after a lawful

seizure. Using this new definition, a public entity

would be repeatedly “re-seizing” any lawfully seized

property for as long as it was in custody. This would

2

effectively rewrite the Fourth Amendment by

dramatically changing the well-established meaning of

“seizure.”

To deter the disproportionate number of serious

accidents caused by drivers without a valid driver’s

license, California Vehicle Code § 14602.6 authorizes

the police to impound a vehicle for 30 days when the

driver has no license, or when the driver’s license had

been suspended for unsafe driving. (App. 29). The

owner is entitled to a prompt hearing to determine if a

statutory exception or mitigating factors exist for the

vehicle’s early release, e.g., the car was stolen, a valid

license has since issued, or the owner lent the vehicle

not knowing that the driver had no valid license. (Post

at 5-6). Absent such a showing, the vehicle is released

after 30 days, subject to towing and storage fees.

Brewster does not dispute that her vehicle was

lawfully seized. (App. 6). Instead, Brewster argues that

her vehicle should have been released upon demand at

the storage hearing, and that retaining her vehicle

pursuant to statute constituted a new and different

“seizure,” which compelled a separate Fourth

Amendment analysis. She regained her vehicle after 30

days.

Brewster brought suit under 42 U.S.C. §1983 and

challenged the continued retention of her vehicle as a

Fourth Amendment violation. The district court,

consistent with the majority of circuits and an

unpublished Ninth Circuit decision, dismissed the

action on the grounds that the Fourth Amendment did

not apply to the continued possession of property after

the completion of a lawful seizure. Since Brewster

relied entirely on the Fourth Amendment, there was no

3

occasion to address any due process issues. (App. 5 and

15). The Ninth Circuit reversed, holding that the

property was effectively being repeatedly re-seized for

as long as it was in the City’s control. Thus, the Ninth

Circuit held that every period of possession was a new

“seizure” which triggered the Fourth Amendment for

the duration of possession.

By attempting to extend the Fourth Amendment

beyond its terms, the Ninth Circuit disregards the prior

decisions of this Court, which have expressly

distinguished between a seizure – the act of taking

possession – and the subsequent possession of the

property, the latter of which is governed by due process

under the Fifth and Fourteenth Amendments.

Similarly, the Ninth Circuit is in express conflict with

the several decisions of its sister circuits, which have

rejected the assertion that a seizure of property under

the Fourth Amendment extends beyond the actual

seizure of the property and continues as long as it is

held by the public entity. A Fourth Amendment seizure

refers to taking possession, not having possession. This

Petition should be granted to clarify the proper

application of the Fourth Amendment and resolve the

circuit conflict.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Ninth Circuit below is reported as Brewster v.

Beck, 859 F.3d 1194 (9th. Cir 2017). A copy of that

opinion is at Appendix, App. 1-9. The order of the

District Court for the Central District of California is

cited at Brewster v. City of Los Angeles, No. 5:14-cv02257-JGB-SP (C.D. Cal. Feb. 27, 2015). A copy of that

opinion is at App. 11-27.

4

JURISDICTION

On June 21, 2017, the Ninth Circuit Court of

Appeals rendered judgment reversing the District

Court's Order dismissing the underlying complaint.

Petitioners the City of Los Angeles, et al., filed a

Petition for Rehearing En Banc on July 14, 2017, which

the Ninth Circuit Court of Appeals denied on August

23, 2017. See, Supreme Court Rule 13.3. This Court

has jurisdiction under 28 U.S.C. § 1254(1).

PERTINENT CONSTITUTIONAL AND

STATUTORY PROVISIONS

U.S. Const. amend IV:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or

affirmation, and particularly describing the

place to be searched, and the persons or things

to be seized.

California Vehicle Code §14602.61 is set forth at

App. 29-37.

California Vehicle Code §22852 is set forth at App.

38-40.

The LAPD’s Impound Policy, also referred to as

Special Order No. 7, is set forth at App. 41-54.

1

Unless otherwise noted, all statutory references are to the

California Vehicle Code.

5

STATEMENT OF THE CASE

A. California Vehicle Code Section 14602.6.

The California Legislature passed the Safe Streets

Act of 1994 in response to its findings that drivers with

suspended licenses were four times more likely to be

involved in a fatal accident than a properly licensed

driver, and that they, along with unlicensed drivers,

inflicted serious injuries and damages on California

residents. Vehicle Code § 14607.4(b) through (e). The

Legislature expressed “a critical interest” in taking all

appropriate steps to protect California residents from

this danger. Id., at § 14607.4(f). This included the

temporary civil impoundment of vehicles driven by

unlicensed drivers, or drivers whose licenses were

suspended for safety violations. Id., at § 14602.6.

Vehicle Code § 14602.6, subdivision (a)(1)

authorizes a peace officer to impound a vehicle for 30

days whenever that officer discovers a specific list of

violations, including that the driver’s license had been

suspended for certain moving or safety violations, or

that the driver never had a valid license. (App. 29). The

process of taking custody of the vehicle – i.e., the

seizure of the vehicle – must comply with the Fourth

Amendment. See Alviso v. Sonoma County Sheriff’s

Dept., 186 Cal. App. 4th 198, 214 (2010). Pursuant to

section 14602.6, subdivision (a)(2), the impounding

agency must notify the legal owner of the impound

within two working days. (App. 29-30).

6

The legal and registered owners “shall be provided

the opportunity for a storage hearing to determine the

validity of, or consider any mitigating circumstances

attendant to, the storage, in accordance with Section

22852.” § 14602.6(b).

The statute lists several

conditions which will trigger the immediate release of

the vehicle, including that the driver has reinstated or

acquired a valid driver’s license and insurance.

§ 14602.6(d)(1). A mitigating circumstance which

supports early release includes that the registered

owner lacked actual knowledge that the driver did not

have a valid license. See Smith v. Santa Rosa Police

Dept., 97 Cal. App. 4th 546, 549-550 (2002). Section

22852 sets out the procedure for hearings to “determine

the validity of the storage” and provides, among other

things, that a “public agency may authorize its own

officer or employee to conduct the hearing if the

hearing officer is not the same person who directed the

storage of the vehicle.” § 22852(c). The LAPD’s

Impound Policy, also referred to as Special Order No. 7,

mirrors § 14602.6. (App. 4, 14 and 41-54).

B. Statement of Facts.

Plaintiff and Respondent, Lamya Brewster loaned

her 2010 Chevrolet Impala to her brother-in-law,

Yonnie Percy, who had a suspended license. Percy

drove himself and two others to a restaurant. LAPD

officers conducted a traffic stop of the car, at which

time they learned Percy’s driver’s license was

suspended. (App. 12-13). The officers ultimately seized

and impounded the vehicle under Vehicle Code

§ 14602.6, subdivision (a)(1), as it was being driven by

a person with a suspended license. (App. 3 and 13).

7

Although the passengers offered to drive the vehicle

to a safe location, Brewster concedes, for purposes of

this lawsuit, that the seizure of her vehicle was lawful

based on the community caretaking doctrine. (App. 6

and 18, n.1). Brewster arrived on the scene after her

vehicle had already been towed, and one of the officers

explained that her car would be impounded for thirty

days, and that she could not reclaim possession until

after that time. (App. 13).

Invoking her right to challenge the validity of the

impound, Brewster appeared through counsel at the

storage hearing three days later. (App. 3-4). Brewster’s

legal representative demanded the release of

Brewster’s car on the grounds that Brewster was the

registered owner, she had a valid license, and she was

willing to pay the charges and fees that had accrued to

that point. (App. 3-4 and 13). Brewster made no claim

that she met any statutory exceptions for early release

or that she offered any evidence of any mitigating

circumstances to support early release. (See id.). See

Vehicle Code § 14602.6(b) and (d)(1). The LAPD denied

the request to release the car to Brewster before the

statutory 30-day period. (App. 4 and 13). Seven days

later, the vehicle was released to its legal owner,

Superior Auto (the finance company), who returned it

to Brewster at the end of 30 days. (App. 4, n.1).

Brewster claims that the failure to return her vehicle

upon demand, and its continued possession thereafter,

constitutes a new and separate seizure of the vehicle

which invokes the Fourth Amendment. Brewster made

no attempt to seek judicial relief from the impound

decision in state court.

8

C. District Court Proceedings and Court of

Appeals Decision.

Brewster filed a federal complaint against the City

of Los Angeles, the LAPD, and Police Chief Charlie

Beck (collectively, “the City”) under 42 U.S.C. § 1983,

seeking injunctive relief, damages, and a class action

regarding the enforcement of Vehicle Code § 14602.6.

(App. 15). While not challenging the initial seizure,

Brewster alleged that refusing to release her vehicle on

demand constituted a separate seizure and was a

violation of her Fourth Amendment rights. (App. 6 and

18-19). Brewster did not raise any due process

challenge, but relied exclusively on the Fourth

Amendment. (App. 5 and 15).

The district court granted the City’s motion to

dismiss for failure to state a claim. (App. 12). The

district court held that the 30-day impoundment under

Vehicle Code § 14602.6 was “analytically separated

from the initial seizure” by the storage hearing. As a

result, the continued possession, unlike the actual

seizure, was not governed by the Fourth Amendment,

but was an administrative penalty that was governed

by due process restrictions. (App. 24-25). In doing so,

the district court accepted the legislative findings that

a disproportionate number of accidents were caused by

unlicensed drivers or drivers with suspended licenses,

and the legislature’s conclusion that the temporary

impoundment under the limited circumstances

described in § 14602.6 was needed to deter this

behavior and protect Californians from the harm

caused by such drivers. (App. 25). To support its

decision, the district court cited to multiple California

decisions and the unpublished Ninth Circuit decision in

9

Salazar v. City of Maywood, 414 Fed. Appx. 73 (9th Cir.

2011). (App. 20-23).

The Ninth Circuit reversed, setting aside the

question of whether the 30-day impound was a valid

administrative penalty. The Ninth Circuit held that,

even if the initial seizure of the vehicle was lawful, the

vehicle was effectively being repeatedly re-seized so

long as it remained in the possession of the public

entity, so that the Fourth Amendment standard for

“seizures” had to be continually reapplied and satisfied

for the entire time of possession by the public entity.

(App. 7). In doing so, the Ninth Circuit expressly

rejected the Seventh Circuit holding in Lee v. City of

Chicago, 330 F.3d 456 (7th Cir. 2003), which held that

the Fourth Amendment only applied to the actual

seizure of property – i.e., the taking of possession – and

that so long as the actual seizure itself was lawful, the

Fourth Amendment did not apply to the subsequent

possession of the property. (App. 7-8; and see post at

16). The Ninth Circuit denied Petitioners’ Petition for

Rehearing En Banc on August 23, 2017. (App. 28).

10

REASONS FOR GRANTING CERTIORARI

Granting certiorari is appropriate when a circuit

split exists, as one does here. Sup. Ct. R. 10(a).

Granting certiorari is appropriate when there is a

conflict between a court of appeals decision and a

decision of this Court. Sup. Ct. R. 10(a).

Granting certiorari is appropriate when the court of

appeals has decided an important question of federal

law “that has not been, but should be, settled by this

Court,” particularly if that decision in inconsistent with

previous decisions of this Court. Sup. Ct. R. 10(c).

I.

The Ninth Circuit Decision Is Inconsistent

with the Decisions of this Court.

While the Court has not explicitly decided whether

the Fourth Amendment applies to the continued

possession of property following an admittedly lawful

seizure, this decision by the Ninth Circuit – equating

an unlawful seizure with the continued possession of

property after a lawful seizure – is inconsistent with

the previous Fourth Amendment decisions of the Court.

This Court has previously distinguished the actual

seizure of property from its subsequent possession.

Consistent with the common meaning of “seizure”, the

Court has explained that a seizure is the singular event

of taking possession or control, as distinguished from

the subsequent possession or control of that property.

“From the time of the founding to the present, the word

‘seizure’ has meant a ‘taking possession’ 2 N. Webster,

An American Dictionary of the English Language 67

(1828); 2 J. Bouvier, A Law Dictionary 510 (6th ed.

1856); Webster’s Third New International Dictionary

2057 (1981).” California v. Hodari D., 499 U.S. 621, 624

11

(1991). (“seizure” equated with “actually bringing it

within physical control.”); and see Brower v. County of

Inyo, 489 U.S. 593, 596 (1989) (defining seizure as “an

intentional acquisition of physical control”).

While Hodari D. and Brower each addressed the

seizure of a person, Hodari D. cited Thompson v.

Whitman, 85 U.S. 457 (1873), which explained the

distinction between the seizure and possession of

property. In Thompson, a New Jersey sheriff seized a

vessel for illegal clam and oyster raking pursuant to a

state statute authorizing seizure within his county. Id.

at 470. However, the sheriff initially seized the vessel

in New York waters and then brought it to New Jersey,

arguing that the seizure was continuous and thus

became a seizure in New Jersey. Id. The Supreme

Court rejected the argument, holding that “seizure”

only applied to the initial act of taking possession: “A

seizure is a single act, and not a continuous fact.

Possession, which follows seizure, is continuous.” Id. at

p. 471.

Consistent with the finding that seizure is a specific

act, and not a state of being, this Court has evaluated

the retention and disposition of lawfully seized

property under due process standards, while making no

reference to the Fourth Amendment. In City of West

Covina v. Perkins, 525 U.S. 234 (1999), property had

been lawfully seized, but was no longer needed for the

criminal investigation or prosecution. Id., at 236. In

reviewing the due process standards and requirements

for returning the property, including the amount of

notice that was required regarding procedures for

securing the return of the property, the Court never

suggested that the continued possession of the property

12

beyond the moment it was needed as evidence had

become a Fourth Amendment violation. See, id., at 240243. Similarly, Federal Rule of Criminal Procedure,

Rule 41(g), authorizes a motion to return lawfully

seized property. It makes no mention of Fourth

Amendment standards in evaluating the continued

possession, or the process of return, but relies on

equitable principles and a balancing of interests – i.e.,

due process.

The Ninth Circuit ignored these decisions, and

instead cited United States v. Jacobsen, 466 U.S. 109,

124 (1984), United States v. Place, 462 U.S. 696 (1983),

and Manuel v. City of Joliet, 137 S. Ct. 911, 914, 920

(2017) to support its proposition that the “Fourth

Amendment doesn’t become irrelevant once an initial

seizure has run its course.” (App. 5-7). In fact, this

proposition is more accurately described as whether the

Fourth Amendment has any further application after

an admittedly lawful and constitutional seizure has

run its course. The Ninth Circuit mistakenly suggests

that Jacobsen, Place, and Manuel each apply the

Fourth Amendment to circumstances regarding the

possession of property after a lawful seizure. In fact,

these decisions only address the propriety of the actual

seizure, i.e., the taking of possession, and offer no

discussion regarding the standard for the retention or

return of property following a lawful seizure.

In Jacobsen, the Court held the Fourth Amendment

was not implicated when a federal agent looked for and

observed what had already been seen and reported by

a private citizen, or by performing a field drug test to

identify the material found. Jacobsen, supra, 466 U.S.

at 119-120 and 123-124. While it applied a Fourth

13

Amendment analysis to the de minimis amount of

material destroyed by the drug test, the Supreme Court

found this procedure was reasonable and therefore a

lawful seizure. Id., at 124-125. There was no discussion

about the standard governing the continuing

possession, or the potential return, of property after it

was lawfully seized.

In Manuel, the plaintiff alleged that his arrest and

pre-trial detention were based solely on false evidence,

leaving no basis for probable cause. Manuel, supra, at

137 S. Ct. at 914-915. Under these circumstance, the

Court held that the start of legal process (i.e., the

judge’s probable cause hearing) did not sever the

defendant’s Fourth Amendment claim by marking the

end of the lawful arrest process, because there was

never any probable cause to support the arrest. Id., at

918-919. As a result, as alleged, there was never a

lawful arrest and the damages for the unlawful arrest

would include any resulting damages, including

plaintiff’s subsequent pretrial custody. Id., at 919.

In Place, the Court held that a purported

investigative detention, pursuant to Terry v. Ohio, 392

U.S. 1 (1968), exceeded the acceptable limited scope of

that procedure, because it lasted 90 minutes and

involved taking the plaintiff’s luggage to a different

airport without his knowledge. Place, supra, 462 U.S.

at 698-700. Moreover, because the object detained was

airport luggage while in transit, this also resulted in

the de facto detention of its owner. Id. at 708-709. As a

result, the officers could not justify their actions as an

investigative detention, and they were required to

demonstrate probable cause to justify their actions in

seizing the luggage. Id., at 709-710. Lacking such a

14

showing, or any other accepted justification, the seizure

was unreasonable under the Fourth Amendment. Id. at

710. As in Manual, the Court in Place found that there

had been no lawful seizure at all, and so had no

occasion to discuss the issue of possession after a

lawful seizure.

The Ninth Circuit also attempts to overextend

Soldal v. Cook County, 506 U.S. 56 (1992), for the

proposition that the 30-day impound after an

admittedly lawful seizure constitutes a separate

“seizure.” (App. 5 and 6-7). In fact, Soldal only

addressed whether removing a plaintiff’s mobile home

and residence from its location constituted a seizure

(i.e. a “meaningful interference with an individual’s

possessory interests”), and concluded that it was. 506

U.S. at 61-62. As with Jacobsen, Place, and Manuel,

Soldal addressed whether the act of taking possession

under the circumstances presented constituted a

seizure under the Fourth Amendment which required

probable cause.

None of these holdings discussed the subsequent

possession of property after a lawful seizure was

completed, and none of them suggested that the Fourth

Amendment governs the continued possession of

property after an admittedly lawful seizure. As

discussed below, the other circuits agree that due

process, and not the Fourth Amendment, governs the

possession and return of lawfully seized property.

15

II.

The Ninth Circuit Decision Presents a

Direct Circuit Conflict.

The Ninth Circuit decision itself recognized its split

with the Seventh Circuit in Lee over the meaning of the

word “seizure” in the Fourth Amendment. (App. 7-8).

The Ninth Circuit failed to acknowledge that its

decision is also a split with the clear majority of

circuits, which almost all agree with the Seventh

Circuit. Only this Court can resolve such a conflict on

this fundamental constitutional issue.

A. A majority of circuit courts employ a

plain reading of the Fourth Amendment.

All of the circuit courts which have addressed the

issue of continuing seizure have agreed that a seizure

under the Fourth Amendment is limited to the taking

of possession – the actual seizure of person or property

– and does not extend to the continued possession or

custody after a lawful seizure is complete. A majority

of circuit courts have rejected the assertion proposed by

the Ninth Circuit that the continued possession of

property after a lawful seizure constitutes a series of

reoccurring and separate seizures.

While the Third Circuit has apparently not

addressed the property seizure issue, Schneyder v.

Smith, 653 F.3d 313 (3rd Cir. 2011) did adopt a

“continuing seizure” model in an unusual case

regarding the involuntary custody of a material witness

pending trial. However, in that case the prosecutor was

charged with keeping the court regularly appraised of

the underlying criminal case “so that [the judge] could

monitor the continued reasonableness of Schneyder’s

detention.” Id., at 328. Thus, this holding provides little

16

support for the Ninth Circuit decision here, given the

significant difference between incarcerating a person

who is not even a suspect for any longer than necessary

and holding a vehicle that was lawfully seized.

1. Six circuits support the Lee decision

in addressing property seizures.

A majority of circuits support the Seventh Circuit

and its Lee decision. Of all the opposing opinions, the

Ninth Circuit only acknowledged Lee, supra, 330 F.3d

at 461-66 (7th Cir. 2003). In Lee, the plaintiff’s car was

properly seized by the police as evidence for a criminal

proceeding, but was eventually no longer needed. That

plaintiff, as here, argued “the City’s refusal to return

his car . . . constituted an additional ‘seizure’ within the

meaning of the Fourth Amendment.” Id., 330 F.3d at

460. The Seventh Circuit held that “[o]nce an

individual has been meaningfully dispossessed, the

seizure of the property is complete, and once justified

by probable cause, that seizure is reasonable. The

[Fourth] amendment then cannot be invoked by the

dispossessed owner to regain his property.” Id., at 466;

see also Gonzalez v. Village of West Milwaukee, 671

F.3d 649, 660 (7th Cir. 2012) (“seizure” occurred when

the property was taken; the government’s continued

possession is not a separate Fourth Amendment

violation). Lee and its brethren agree that due process

provides the constitutional protections for the

appropriate retention and return of property. Lee,

supra, 330 F.3d at 462-463 (citing both Hodari D. and

Thompson), and see immediately below.

17

A survey of opinions in the circuits supporting Lee

confirms the consensus on this issue. Five circuits

have addressed this issue in the specific context of

property seizure.

First Circuit: In DeNault v. Ahern, 857 F.3d 76

(1st Cir. 2017), police officers impounded a suspect’s

vehicle as part of their investigation and obtained a

warrant to search it. After failing to find any relevant

evidence, they returned the vehicle to the towing

company, but no one informed the suspect or his wife.

By the time they discovered the location of their

vehicle, the towing and impound fees exceeded the

value of the vehicle. Id., 79-80. The suspect and his

wife sued on several theories. The First Circuit held

that “to the extent a plaintiff may challenge on federal

constitutional grounds the government’s retention of

personal property after a lawful initial seizure . . . that

challenge sounds in the Fifth Amendment rather than

in the Fourth Amendment.” Id., at 84.

Second Circuit: The criminal suspect in Shaul v.

Cherry Valley-Springfield Central School District, 363

F.3d 177 (2d Cir. 2004) had some personal possessions

lawfully seized as part of the investigation. While some

of these items were eventually returned, he claimed

that certain items were never returned. In the

following suit, among other claims, he argued the

failure to return those items constituted a separate

unlawful seizure. Id., at 180-181. The Second Circuit

held that where “an initial seizure of property was

reasonable, defendants’ failure to return the items does

not, by itself, state a separate Fourth Amendment

claim of unreasonable seizure.” Id., at 187. “To the

extent the Constitution affords Shaul any right with

18

respect to a government agency’s retention of lawfully

seized property, it would appear to be procedural due

process.” Id.; followed by Ahlers v. Rabinowitz, 684

F.3d 53, 62 (2d Cir. 2012).

Sixth Circuit: In Fox v. Van Oosterum, 176 F.3d

342 (6th Cir. 1999), Fox’s wallet was seized in an

admittedly lawful search, and was later returned

without his driver’s license. Id., at 346 and 351. Among

other claims, Fox claimed the failure to return the

license was a Fourth Amendment violation. The Sixth

Circuit held that “the Fourth Amendment protects an

individual’s interest in retaining possession of property

but not the interest in regaining possession of

property.” Id., at 351, emphasis added. “Once that act

of taking the property is complete, the seizure has

ended and the Fourth Amendment no longer applies.”

Id. The court expressed concern that expanding the

Fourth Amendment in such a fashion “would replace

for many cases the well-developed procedural due

process analysis that provides the states with the first

chance to prevent possible constitutional wrongs with

a new, uncertain Fourth Amendment analysis that

allows litigants to jump straight to federal court every

time a state official refuses to return property that was,

at least at one point, lawfully seized or lawfully in the

state’s possession.” Id., at 352.

Eighth Circuit: It appears that the Eighth Circuit

“has not squarely decided the question . . . whether the

City’s continued retention of [property] after its initial,

constitutionally valid seizure, is separately actionable

as a Fourth Amendment violation.” Hopkins v. City of

Bloomington, 2013 U.S. Dist. LEXIS 137392, *33-34 (D.

Minn 2013).

However, the Eighth Circuit has

19

expressed skepticism about such a claim on at least two

occasions. Ali v. Ramsdell, 423 F.3d 810, 814 (8th Cir.

2005) (“We have considerable doubt whether an

allegation that property appropriately seized in

executing a valid search warrant but not inventoried

and stored in the manner required by state law even

states a claim under the Fourth Amendment.”);

Gilmore v. City of Minneapolis, 837 F.3d 827, 838 (8th

Cir. 2016) (“Moreover, if the seizure was valid, we

doubt Gilmore can assert a Fourth Amendment claim

over the sign’s destruction.”). At least one district court

in the Eighth Circuit has concluded that the Eighth

Circuit’s rulings were consistent with the other circuit

courts in limiting a Fourth Amendment claim to the

actual seizure of property. See Hopkins, supra, 2013

U.S. Dist. LEXIS 137392, at *33-34. Hopkins held that

since the seizure of the property was lawful “the City’s

prolonged retention of the Vehicle does not raise a

cognizable Fourth Amendment claim”. Id., at *34.

Eleventh Circuit: In Case v. Eslinger, 555 F.3d

1317 (11th Cir. 2009) the undisputed evidence showed

that the seizure of plaintiff’s property was lawful, but

he also claimed that the property’s continued retention

separately violated the Fourth Amendment. Id., at

1330. The Eleventh Circuit held that a “complaint of

continued retention of legally seized property raises an

issue of procedural due process” and not a cause of

action under the Fourth Amendment. Id., at 1330-1331.

Similarly, Byrd v. Stewart, 811 F.2d 554, 554-555 (11th

Cir. 1987) distinguished between a claim of unlawful

seizure, sounding under the Fourth Amendment, and

a claim of for “the unlawful retention of his personal

property” after that seizure, which was a due process

claim.

20

2. Three additional circuits have

rejected a proposed “continuing

seizure”.

An additional three circuits have addressed and

rejected the related issue of a “continuing seizure,” as

applied to the detention of individuals. In each of these

cases, the court held that after a lawful seizure/arrest

was completed, the ongoing detention of individuals

was governed by due process, not the Fourth

Amendment. While cases involving the seizure of

individuals adds the complication of defining when the

arrest process is completed (i.e., initial custody,

delivery by the arresting officers to holding cell,

arraignment, etc.), the process of seizing property is

typically less complicated, and the issue has no

application here since it is undisputed that the

completed seizure of Brewster’s vehicle was lawful.

(App. 6 and 18, n.1).

In any case, at some point the lawful seizure is

complete, and the public entity then has custody of the

person or property seized. Since the Fourth

Amendment prohibition against “unreasonable

searches and seizures” is applied simultaneously to

“persons or things to be seized” its restrictions apply in

parallel to both. See, U.S. Const., Amend. IV; United

States v. Watson, 423 U.S. 411,446. As a practical

matter, the liberty interests of individuals are given at

least as much protection, and presumably even more,

than is provided to mere property, so each of these

cases show a further consensus against the Ninth

Circuit’s decision regarding the seizure of property.

See, Id., at 446-447.

21

Fourth Circuit: Riley v. Dorton, 115 F.3d 1159

(4th Cir. 1997) (en banc)2 addressed an excessive force

claim by a defendant who was already in custody and

awaiting trial. After a “review of the Supreme Court’s

basic jurisprudence” regarding the scope and nature of

a “seizure,” Riley concluded that “[d]ecades of Fourth

Amendment precedent have focused on the initial

deprivation of liberty” and not the subsequent custody

of that person or property by the public entity. Id., at

1162-63. “In sum, we agree with the Fifth, Seventh,

and Eleventh Circuits that the Fourth Amendment

does not embrace a theory of ‘continuing seizure’ . . .”

Id., at 1164. The Fourth Circuit held that the

conditions of custody were instead restricted by due

process under the Fourteenth Amendment. Id., at

1166-7.

Fifth Circuit: The decedent in Brothers v.

Klevenhagen, 28 F.3d 452, 454 (5th Cir. 1994) was shot

while trying to escape after he had already been

transferred to jail. The Fifth Circuit rejected plaintiffs’

unlawful seizure claim, holding that “the Fourth

Amendment applies more appropriately to the actual

incident of arrest.” Id., at 456. “Once an individual has

been arrested and is placed into police custody,” …a

detainee is “protected against excessive force by the

Due Process Clause.” Id., at 457. See also Gutierrez v.

City of San Antonio, 139 F.3d 441, 452 (5th Cir. 1998)

(“While the Fourth Amendment protects arrestees,

once an arrest is complete, pretrial detainees are

protected by the due process clause of the Fifth or

Fourteenth Amendments.”); but see, United States v.

2

Riley was reversed in part on other grounds in Wilkins v. Gaddy,

559 U.S. 34, 38-39 (2010).

22

McRae, 702 F.3d 806, 833 (5th Cir. 2012) (noting that

the scope of the Fourth Amendment in property

seizures had not yet been separately addressed by the

Fifth Circuit).

Tenth Circuit: While the Tenth Circuit in Becker

v. Kroll, 494 F.3d 904 (10th Cir. 2007) ultimately

decided that the plaintiff had not actually been seized

at all, in reaching that conclusion the Tenth Circuit

discussed and agreed with the decisions which rejected

a “continuing seizure” rationale. Id., 915-16. At best,

the court found that seizure might extend to the

beginning of pretrial incarceration, but rejected the

idea that it extended for the duration of custody. Id.

As held by this Court in Thompson, a seizure is the

specific event of obtaining possession that is completed

once the property is secured. Thompson, supra, 85 U.S.

at 471. While other cases might raise factual questions

as to when or how the process of taking possession was

completed, at some point the public entity will complete

the seizure and have possession, as the City did with

Brewster’s vehicle. (See App. 6 and 18, n.1).

Thereafter, possession is the continuous state of having

custody. As the majority of circuit courts have

concluded, the propriety of that possession, and the

disposition of the property, is governed by due process

under the Fifth and Fourteenth Amendments, not the

Fourth Amendment. The Ninth Circuit’s holding below

is directly opposed to those decisions, and holds instead

that the ongoing possession of Brewster’s vehicle

constitutes a daily “re-seizure” that repeatedly triggers

the Fourth Amendment – notwithstanding the lawful

seizure which began that possession. See, Ante at 9.

This fundamental conflict over the meaning of “seizure”

23

is irreconcilable and requires the guidance of this

Court.

B. The other circuit decisions are

consistent with the California state

courts.

The California courts have upheld the

constitutionality of section 14602.6 with the same basic

analysis of the other circuit courts. The California

courts recognize the legitimate legislative purpose of

protecting public safety by deterring unlicensed

drivers. See Smith v. Santa Rosa Police Dept., 97

Cal. App. 4th 546, 558-560 (2002) (noting legislative

findings that unqualified drivers are disproportionally

involved in fatal accidents and confirming that Section

14602.6 was part of a statutory scheme “aimed at

increasing penalties for driving without a valid

license”); Samples v. Brown, 146 Cal. App. 4th 787, 805

(2007) (explaining that § 14602.6 implements “the

legislative policy decision to deter and punish

unlicensed driving”); and see § 14607.4 [statement of

legislative findings].

In Alviso v. Sonoma County Sheriff’s Dept., 186

Cal. App. 4th 198 (2010), as with Brewster, there was

no challenge to the initial seizure of the vehicle, only a

claim that continued possession of the vehicle

supported a new Fourth Amendment challenge. Id., at

214. Alviso rejected this approach, finding that without

a challenge to the actual seizure of the vehicle, the

subsequent events– notice, the storage hearing, and the

continued retention of the vehicle – are governed by

issues of due process, and do not constitute an

unconstitutional seizure. Ibid.; and see Thompson v.

Petaluma Police Dep’t, 231 Cal. App. 4th 101 (2014)

24

(“The courts have . . . concluded that the statute does

not violate state and federal constitutional principles of

. . . freedom from unreasonable seizures.”)

III.

The Issue in Conflict Is Recurring and of

Great Practical Importance.

The fact that nearly all of the circuits have

addressed the issue of whether a “seizure” is limited to

its common definition of taking possession, or whether

it extends to the subsequent possession or custody of

the person or property at issue, demonstrates that this

is a reoccurring and important issue that needs to be

resolved. This distinction also has a broad and

meaningful practical effect, as impound statutes are

common in a variety of situations at the state and local

level. These local public entities need guidance on how

they should design and execute their procedures, and

what legal standards need to be addressed.

The Court has previously acknowledged this and

related issues, but has not had the occasion to resolve

them. For example, in her concurring opinion to

Albright v. Oliver, 510 U.S. 266, 277-279 (1994), Justice

Ginsburg argued that a suspect remained “seized” even

when out on bail awaiting trial, and therefore the

Fourth Amendment should apply to control the

grounds and contours of all pretrial custody. The

plurality opinion did not opine on a potential Fourth

Amendment claim. Id., at 271. This proposed expansion

of the Fourth Amendment to include subsequent

custody, and not just the actual seizure, was expressly

rejected by the circuit courts in Lee, Riley, Brothers,

and Becker, each discussed above. See Lee, supra, 330

F.3d at 463; Riley, supra, 115 F.3d at 1162; Brothers,

supra, 28 F.3d at 456; Becker, supra, 494 F.3d at 915;

25

and see, Nieves v. McSweeney, 241 F.3d 46, 55-56 (1st

Cir. 2001) (rejecting the extension of the Fourth

Amendment beyond the point at which the

arrest/seizure ends). Conversely, this idea is now

supported, if not specifically cited, by the Ninth Circuit.

The definition of “seizure” was again raised in the

context of a criminal suspect in a concurring opinion

earlier this year by Justice Alito in Manuel, in which

he noted “[t]hat proposition—that every moment in

pretrial detention constitutes a ‘seizure’— is hard to

square with the ordinary meaning of the term.” See,

Manuel, supra,137 S. Ct. at 926-927. Consistent with

the several circuit opinions discussed above, Justice

Alito cited multiple examples showing the ordinary

meaning of “seizure” was limited to the act of taking

possession, and cautioned against “stretch[ing] the

Fourth Amendment beyond its words”. Id., at 927,

citing Hodari D., supra, 499 U. S., at 627. While

neither represents the final decision of the Court, these

conflicting indications add to the potential division of

the circuits and further emphasize the need for

authoritative guidance on this issue.

CONCLUSION

There remains an explicit conflict among the

circuits on the fundamental issue of the definition of

“seizure” in the Fourth Amendment. The guidance of

this Court and a resolution to this dispute is urgently

needed.

26

DATED: November 21, 2017

Respectfully submitted,

MICHAEL N. FEUER

City Attorney

JAMES P. CLARK

Chief Deputy City Attorney

BLITHE S. BOCK

Assistant City Attorney

GABRIEL S. DERMER

Assistant City Attorney

MICHAEL M. WALSH

Deputy City Attorney

Counsel of Record

200 North Main Street, Room 700

City Hall East

Los Angeles, California 90012-4130

(213) 978-2209

michael.walsh@lacity.com

Attorneys for Petitioners

City of Los Angeles, Los Angeles Police

Department and Chief Charlie Beck