Petition for Writ of Certiorari — City of St. Louis, Missouri, et al., Petitioners v. Mary R. Meier

Supreme Court briefDec 19, 2019

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No. _________

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In The

Supreme Court of the United States

-----------------------------------------------------------------CITY OF ST. LOUIS, MISSOURI,

and DOC’S TOWING, INC.,

Petitioners,

MARY MEIER,

Respondent.

-----------------------------------------------------------------On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

-----------------------------------------------------------------PETITION FOR WRIT OF CERTIORARI

-----------------------------------------------------------------JOSHUA G. VINCENT

HINSHAW & CULBERTSON LLP

151 N. Franklin St.

Suite 2500

Chicago, IL 60606

312-704-3000

jvincent@hinshawlaw.com

Attorneys for Petitioner

Doc’s Towing, Inc.

*Counsel of Record

JULIAN L. BUSH

City Counselor

ROBERT H. DIERKER*

J. BRENT DULLE

Associate City Counselors

MEGAN BRUYNS

AMY RAIMONDO

Assistant City Counselors

314 City Hall

1200 Market St.

St. Louis, MO 63103

314-622-3361

dierkerr@stlouis-mo.gov

Attorneys for Petitioner

City of St. Louis

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

QUESTIONS PRESENTED FOR REVIEW

Every year, thousands of automobiles are identiﬁed in law enforcement databases as stolen or wanted

in connection with crimes. Warrants for seizure of automobiles in public places on probable cause have

never been required under the Fourth Amendment –

yet the judgment of the Court of Appeals here imposes

liability under 42 U.S.C. §1983 on petitioners due to a

warrantless seizure of a truck pursuant to a “wanted”

bulletin, notwithstanding probable cause to believe

that the truck was evidence or an instrumentality of

crime. The Court of Appeals also held that the practice

of a towing contractor of a different jurisdiction, to detain automobiles seized pursuant to “wanted” bulletins

issued by a different police agency, could result in liability of a city under §1983, notwithstanding that the

private actor had no contractual relationship with and

was not acting at direction of petitioner City. These

holdings conﬂict with decisions of this Court and other

Circuits.

I. Whether a municipality, whose ofﬁcers issued

a “wanted” report supported by probable cause to believe that an automobile was an instrumentality or evidence of a crime, resulting in the seizure of an

automobile by ofﬁcers of another jurisdiction, can be

held liable for a violation of the Fourth and Fourteenth

Amendments, in an action by the vehicle’s owner under

42 U.S.C. §1983 for seizure of the automobile?

II. Whether the “rigorous standards” of causation and culpability governing municipal liability under 42 U.S.C. §1983 permit such liability against a

QUESTIONS PRESENTED FOR REVIEW

– Continued

municipality to be predicated on the conduct of a nongovernmental actor in retaining property seized by police, on the basis of the non-governmental actor’s own

policy or custom of enforcing “wanted” bulletins from

law enforcement agencies, without any other connection with the municipality against which the §1983 action is brought?

iii

PARTIES

Petitioner City of St. Louis, appellee-defendant below, is a constitutional charter city under Missouri law.

Petitioner Doc’s Towing, Inc., appellee-defendant

below, is a closely held Missouri corporation.

Respondent Mary Meier, appellant-plaintiff below,

is an individual citizen of Missouri.

The Board of Police Commissioners of the City of

St. Louis, a state agency, was initially a party defendant below but was dropped by the amended complaint;

the City of St. Louis is the successor in interest to said

Board.

CORPORATE DISCLOSURE STATEMENT

Pursuant to Sup. Ct. R. 29.6, it is noted that Doc’s

Towing, Inc., is a closely held Missouri corporation.

There is no parent or publicly held company owning

10% or more of the corporation’s stock.

RELATED CASES

Meier v. City of St. Louis, et al., No. 1622-CC09903,

Missouri Circuit Court, 22nd Circuit, was initiated

by respondent herein and removed to the District

Court, Eastern District of Missouri, becoming 4:16CV-1549-RWS-01. After decision of the District Court

to remand state claims, the Missouri Circuit Court,

22nd Circuit, reopened the cause in state court as No.

1622-CC09903-01. Following remand by the Court of

RELATED CASES – Continued

Appeals for the Eighth Circuit (No. 18-1597), the

aforementioned federal cause remains pending in the

District Court as to federal claims only. The federal

case is now set for trial on April 20, 2020.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ........

PARTIES ..............................................................

iii

CORPORATE DISCLOSURE STATEMENT ......

iii

RELATED CASES ...............................................

iii

TABLE OF CONTENTS ......................................

TABLE OF AUTHORITIES ................................. viii

PETITION FOR WRIT OF CERTIORARI ...........

OPINIONS BELOW.............................................

JURISDICTION ...................................................

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ...............................

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

REASONS FOR GRANTING THE PETITION ... 11

The petition should be granted because

the questions presented are questions of

serious national importance for law enforcement and for local governments, in

that, if left undisturbed, the judgment of

the Court of Appeals will impair the ability of law enforcement to seize vehicles in

public places on probable cause, without a

warrant, and will entail incalculable potential liability for local governments in

such situations........................................... 11

TABLE OF CONTENTS – Continued

Page

II.

The petition should be granted because

the questions presented are questions of

serious national importance in regard to

defining the dimensions of municipal liability under 42 U.S.C. §1983, which are in

urgent need of reexamination by this

Court, in that the opinion of the Court of

Appeals exemplifies a systemic failure of

the lower federal courts to apply “rigorous

standards” of culpability and causation in

§1983 actions premised on municipal “custom” ............................................................ 16

III.

The petition should be granted because

the judgment of the Court of Appeals is in

direct conflict with decisions of this Court,

of other Courts of Appeals, and of state

courts in the matter of warrantless seizure of automobiles in public places, on

probable cause, and the lower court’s error

can only be corrected by this Court ........... 22

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

APPENDIX

Appendix A – Opinion of the Court of Appeals

for the Eighth Circuit ........................................... A-1

Appendix B – Memorandum and Order of the

District Court ...................................................... A-12

vii

TABLE OF CONTENTS – Continued

Page

Appendix C – Order of the Court of Appeals

Denying Rehearing and Rehearing en banc ...... A-25

Appendix D – Plaintiff ’s Amended Complaint ...... A-27

viii

TABLE OF AUTHORITIES

Page

CASES

Adickes v. S.H. Kress & Co., 398 U.S. 144

(1970) ........................................................... 17, 18, 21

Bell v. City of Chicago, 835 F.3d 736 (7th Cir.

2016) ........................................................................22

Board of County Commissioners v. Brown, 520

U.S. 397 (1997) .............................................. 3, 16, 20

Chambers v. Maroney, 399 U.S. 42 (1970) ............ 14, 22

City of Los Angeles v. Lyons, 461 U.S. 95 (1983) ........18

City of Oklahoma City v. Tuttle, 471 U.S. 808

(1985) .......................................................................19

City of St. Louis v. Praprotnik, 485 U.S. 112

(1988) ................................................................... 4, 16

City of West Covina v. Perkins, 525 U.S. 234

(1999) .......................................................................23

Connick v. Thompson, 563 U.S. 51 (2011) ....................3

Crawford-El v. Britton, 523 U.S. 574 (1998) ..............16

Florida v. White, 526 U.S. 559 (1999) ............. 14, 22, 23

G.M. Leasing Corp. v. United States, 429 U.S. 338

(1977) .......................................................................14

Herring v. United States, 555 U.S. 135 (2009) ...........19

Jett v. Dallas Ind. Sch. Dist., 491 U.S. 701 (1989)....... 17

Lagaite v. State, 995 S.W.2d 860 (Tex.App.1999) ........23

Lum v. Donohue, 101 Haw. 422, 70 P.3d 648

(2003) .......................................................................23

TABLE OF AUTHORITIES – Continued

Page

McMillian v. Monroe County, 520 U.S. 781

(1997) .......................................................................17

Monell v. Dept. of Social Services, 436 U.S. 658

(1978) .......................................................................17

State v. Brereton, 345 Wis.2d 563, 826 N.W.2d

369 (2013) ................................................................23

Texas v. Brown, 460 U.S. 730 (1983) ..................... 14, 22

United States v. Conlan, 786 F.3d 380 (5th Cir.

2015) ........................................................................15

United States v. Cooper, 949 F.2d 737 (5th Cir.

1991) ........................................................................23

United States v. Hensley, 469 U.S. 221 (1985) ...........15

United States v. Noster, 590 F.3d 624 (9th Cir.

2009) ........................................................................15

United States v. Pleasant, 2017 U.S.Dist.LEXIS

181393 (E.D.Pa. 2017) .............................................15

Warden v. Hayden, 387 U.S. 294 (1967) .....................14

CONSTITUTIONAL PROVISIONS AND STATUTES

U.S.Const., Amend. IV ........................................ passim

U.S.Const., Amend. XIV, §1 ..........................................6

28 U.S.C. §1254(1) .........................................................5

28 U.S.C. §2101(c) .........................................................5

42 U.S.C. §1983 ................................................... passim

Sup.Ct.R. 13.3 ...............................................................5

TABLE OF AUTHORITIES – Continued

Page

Mo.Rev.Stat. §542.301 .......................................... 20, 24

Mo.Rev.Stat. §577.060 ............................................ 7, 12

Fed. R. Civ. P. 30(b)(6) .................................................10

OTHER AUTHORITIES

2008 Code of Ordinances and Resolutions of the

Uniﬁed Government of Wyandotte County/

Kansas City, Kansas Sec. 35-196(9) .......................14

City of Westminster Police Department Policies,

Westminstermd.gov (2019) .....................................13

Federal Judicial Caseload Statistics 2018, ADMINISTRATIVE OFFICE OF THE U.S. COURTS ...............21

“Hit-and Run Deaths Hit Record High,” AAA

April 26, 2018 ..........................................................12

Lewis F. Powell, “Are the Federal Courts Becoming Bureaucracies?,” 68 A.B.A. J. 1370, 1372

(No. 1982) ................................................................20

National Crime Information Center (NCIC),

2016, Dept. of Justice Criminal Justice Information Services Division .................................. 11, 12

Vehicle Impounds, Lancaster-tx.com (2019) ..............13

Vehicle Towing and Relocation Operations, Directives.chicagopolice.org (2019) ............................13

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

The City of St. Louis and Doc’s Towing, Inc., petitioners herein, respectfully pray that a writ of certiorari issue to review the judgment of the United States

Court of Appeals for the Eighth Circuit entered in this

case.

Literally millions of crimes against persons and

property occur each year in the United States. Police,

unfortunately, are rarely at the scene of these crimes

in time to intervene or make an immediate arrest. Unless the perpetrator is personally known to the victim,

the police must rely on the reports from victims which

describe the perpetrators, and on evidence that may be

found at the scene to identify and apprehend the miscreants. In many cases, an automobile will ﬁgure in the

crime, either as stolen property or as the means for the

criminal to escape, or as the instrumentality of the offense itself, as in this case, in which the driver of a

truck hit another vehicle and ﬂed the scene. When police investigation leads to a useful description of a

criminal or an automobile involved, it is essential that

this information be broadcast as widely as possible, in

order to locate the criminal or any automobile involved. Thus, it is commonplace for ofﬁcers to ﬁle

“wanted” reports or bulletins, describing persons or automobiles that are reasonably believed to have been involved in criminal activity. The National Crime

Information Center database contains data on many

thousands of automobiles stolen or connected to

criminal activity. This Court has recognized for many

years that the Fourth Amendment is not offended

when police in one jurisdiction seize a person or automobile, without a warrant, in reliance upon information provided by another jurisdiction, as long as

their reliance is reasonable, and that reliance is reasonable indeed when the broadcast information is in

fact solidly supported by probable cause. Further, this

Court and other Circuits consistently have held that

warrantless seizure of automobiles on probable cause

is constitutional.

In the case at bar, the Court of Appeals ignored the

realities of communicating information regarding automobiles involved in criminal activity, jettisoned established Fourth Amendment jurisprudence of this

Court and other Circuits, and held that a municipality

can be liable under §1983 when its ofﬁcers broadcast a

“wanted” bulletin or report, based on probable cause,

seeking to locate a truck, and the truck is later seized

by another jurisdiction’s ofﬁcers without a warrant.

With equal disregard of precedent under §1983, the

Court of Appeals also insisted that if the “wanted” report was acted on by anybody, including a private

company under contract with a wholly independent

municipality, the city whose police broadcast the report

could be held liable on a theory of unconstitutional

“custom,” a custom created without any evidence of involvement of policymakers as deﬁned by state law.

By creating the specter of incalculable damage to

law enforcement and corresponding potential liability

of local governments and non-governmental actors

such as Doc’s Towing for thousands of lawful warrantless searches and seizures of automobiles, the dramatic departure from established Fourth Amendment

jurisprudence by the Court of Appeals, in conﬂict with

this Court and other Circuits, would alone warrant review by this Court. However, that Court’s cavalier disregard of the “rigorous standards” of culpability and

causation that are demanded in the context of municipal liability under §1983 also demands attention from

this Court.

Except for a narrowly-focused issue of “failure to

train” liability in Connick v. Thompson, 563 U.S. 51

(2011), this Court has not had occasion to expound the

standards of municipal liability under §1983 since

Board of County Commissioners v. Brown, 520 U.S. 397

(1997). In the meantime, the torrent of §1983 suits has

continued unabated, and it has become routine to join

municipal employers in such suits to increase settlement pressure. This routine tactic is largely due to the

lower federal courts’ persistent refusal to “rigorously”

demand a sufﬁcient showing of culpability and causation before subjecting municipalities to trial. In this

case, the attenuated causation chain is particularly

problematic: a private company, with no direct or indirect connection to petitioner City, elected to detain Ms.

Meier’s truck after it was lawfully seized. The towing

company’s conduct, however, was held sufﬁciently related to the practice of petitioner City’s police in issuing “wanted” reports that the petitioners can be held

liable for the detention of the truck, without any showing that the seizure of the truck was unconstitutional,

that any of petitioner City’s ofﬁcers took any action to

approve or encourage the detention, or that any person

with ﬁnal City policymaking authority had ever been

aware of or approved detention of automobiles by private third parties on account of “wanted” reports.

For §1983 liability to attach to a municipality on

the basis of “custom,” there must be a showing of a persistent and widespread practice having the force of law

that was the “moving force” in a constitutional violation. The Court of Appeals identiﬁed a practice of

broadcasting “wanted” reports resulting in warrantless seizures, without troubling to analyze the practice

consonant with Fourth Amendment principles, and

then proceeded to hold that such a practice caused a

constitutional violation when an independent third

party decided to detain the Meier truck on the strength

of the “wanted” bulletin; all of this without any effort

to identify the involvement of anyone with ﬁnal municipal policymaking authority on the issue as a matter of

state law. Thus, the Court of Appeals, as in City of St.

Louis v. Praprotnik, 485 U.S. 112 (1988), has again misapprehended the proper analytical framework for fastening §1983 liability on a municipality, and requires

guidance from this Court.

------------------------------------------------------------------

OPINIONS BELOW

The opinion and order of the District Court ﬁled

on February 21, 2018, is unreported. The opinion and

judgment of the Court of Appeals, reversing the

District Court, ﬁled on August 19, 2018, is reported at

934 F.3d 824 and is included as Appendix A to this petition. The opinion and accompanying judgment of the

District Court are included as Appendix B. The order

of the Court of Appeals denying rehearing is included

as Appendix C.

------------------------------------------------------------------

JURISDICTION

The order of the Court of Appeals denying rehearing was ﬁled on September 25, 2019, and this petition

is ﬁled within 90 days of that date. 28 U.S.C. §2101(c);

Sup.Ct.R. 13.3. The jurisdiction of this Court is invoked

under 28 U.S.C. §1254(1).

------------------------------------------------------------------

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

U.S.Const., Amend. IV provides:

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.

U.S.Const., Amend. XIV, §1, provides:

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof,

are citizens of the United States and of the

State wherein they reside. No State shall

make or enforce any law which shall abridge

the privileges or immunities of citizens of the

United States; nor shall any State deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within

its jurisdiction the equal protection of the

laws.

Section 1 of the Civil Rights Act of 1871, 17 Stat.

13, 42 U.S.C. §1983, provides in pertinent part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen

of the United States or other person within

the jurisdiction thereof to the deprivation of

any rights, privileges, or immunities secured

by the Constitution and laws, shall be liable

to the party injured in an action at law, suit in

equity, or other proper proceeding for redress,

except that in any action brought against a judicial ofﬁcer for an act or omission taken in

such ofﬁcer’s judicial capacity, injunctive relief shall not be granted unless a declaratory

decree was violated or declaratory relief was

unavailable. . . .

Mo.Rev.Stat. §577.060 provides in pertinent part:

Leaving the scene of an accident – penalties.

– 1. A person commits the offense of leaving

the scene of an accident when:

(1) Being the operator of a vehicle or a

vessel involved in an accident resulting in injury or death or damage to property of another

person; and

(2) Having knowledge of such accident

he or she leaves the place of the injury, damage or accident without stopping and giving

the following information to the other party or

to a law enforcement ofﬁcer, or if no law enforcement ofﬁcer is in the vicinity, then to the

nearest law enforcement agency:

(a)

His or her name;

(b) His or her residence, including city

and street number;

for his or her vehicle or vessel; and

(d)

if any.

His or her operator’s license number,

------------------------------------------------------------------

STATEMENT OF THE CASE

The Court of Appeals acted on an appeal from the

grant of summary judgment. Because petitioners believe that the questions presented do not turn on any

disputed facts, petitioners proceed on the facts as

stated by the lower courts, reserving the right to contest certain material facts in the event of further proceedings below.1

Mary Meier, plaintiff below and respondent here,

owned a truck. Her son was driving the truck when it

collided with another car. Her son ﬂed without complying with state law in regard to providing information

at accident scenes and so violated state law. St. Louis

police ofﬁcers were summoned to the accident scene.

Upon arrival, they obtained information regarding the

accident, including information enabling them to identify the truck and its owner. The ofﬁcers, in accordance

with standard practice, ﬁled a “wanted” report with a

multi-jurisdictional law enforcement database known

as REJIS, identifying the truck and its connection to

the crime of leaving the scene.

Some months after the accident involving the

Meier truck occurred and the “wanted” report was

ﬁled, ofﬁcers of a suburban municipality encountered

the son and the truck in suspicious circumstances. In

the course of investigating the truck and its occupants,

the suburban ofﬁcers learned of the “wanted.” At least

in part on account of the “wanted,” the suburban ofﬁcers arranged for their jurisdiction’s contractor (Doc’s

Towing) to tow and impound the truck. Notice was

For example, there was a dispute as to whether the

“wanted” ﬁled by St. Louis police was supposed to be a request for

location information on the truck in question, rather than a request to “hold” or seize the truck. For purposes of this petition, it

is assumed that the seizure of the truck was a foreseeable result

of the “wanted” when the truck was located by law enforcement.

given to Ms. Meier as to the location and custody of the

truck. St. Louis police were also notiﬁed and requested

that the suburban police direct the truck’s owner to

contact St. Louis police concerning the truck. When Ms.

Meier sought release of the truck, a Doc’s Towing employee told her that the truck would not be released

without approval of the St. Louis police, although Doc’s

Towing had had no communication with St. Louis police. When contacted by Ms. Meier’s son about release

of the truck, St. Louis police told him to come to a police

station to discuss the accident. He did not do so. After

further delay, an attorney for Ms. Meier secured a release order signed by a St. Louis detective on a form

directed to a St. Louis agency and not Doc’s Towing.

Thanks to the St. Louis release order, Ms. Meier

regained possession of the truck, but it was in a damaged condition and had been treated as abandoned by

Doc’s Towing. The title to the truck has not yet been

cleared. Ms. Meier’s son is now imprisoned on unrelated charges. St. Louis police never pursued charges

for leaving the scene of the accident.

Ms. Meier ﬁled suit in Missouri Circuit Court, asserting claims under 42 U.S.C. §1983 and state law on

account of the seizure and detention of the truck. The

cause was removed to federal court due to the §1983

claims. Ms. Meier subsequently ﬁled an amended complaint (Appendix D hereto), and, after discovery, all

parties moved for summary judgment.

The District Court granted summary judgment on

the federal claims and remanded the state law claims

against Doc’s Towing. Appendix B, pp. A-22-A-24. The

District Court focused on the causation issue, concluding that Meier’s federal claims failed because of two

undisputed facts: the truck was seized by ofﬁcers of another jurisdiction, and “whatever actions Doc’s took, it

did not act in concert with the City of St. Louis.” Id., p.

A-16. Thus, there was “simply no evidence in this case

that would permit a reasonable fact ﬁnder to conclude

that the City of St. Louis was the moving force behind

the deprivation of plaintiff ’s property.” Id., p. A-18.

On appeal, the Court of Appeals for the Eighth Circuit reversed. In its reading of the record, the Court

paid no attention to the issue of probable cause for seizure of the truck in the ﬁrst place. Instead, the Court

focused on what it perceived to be the petitioner City’s

“custom,” which it concluded consisted of City police

“employees’ continuing, widespread, persistent practice of using wanted reports to seize vehicles without a

warrant as an investigative tool.” Appendix A, pp. A-6A-7. In reaching this conclusion, the Court also decided

that two testifying witnesses, one not employed by petitioner City and one merely a Rule 30(b)(6) designee,

were “policymaking ofﬁcials,” wholly without reference

to state law on the matter of who had authority to set

policy for petitioner City. Id.

On the issue of causation, the Court of Appeals

found evidence in the record that City police had advised the suburban police department to instruct the

truck owner or driver to go to a St. Louis police station

“regarding release of the truck.” From this, the Court

concluded, “A reasonable jury could ﬁnd that Meier’s

truck was towed and held pursuant to [petitioner’s] unwritten but widespread and persistent policy of reporting vehicles as wanted for the purpose of detaining

them without a warrant.” Id., p. A-8.

------------------------------------------------------------------

REASONS FOR GRANTING THE

PETITION FOR WRIT OF CERTIORARI

The petition should be granted because the

questions presented are questions of serious national importance for law enforcement and for local governments, in that, if

left undisturbed, the judgment of the Court

of Appeals will impair the ability of law enforcement to seize vehicles in public places

on probable cause, without a warrant, and

will entail incalculable potential liability

for local governments in such situations.

In this case, it is undisputed that respondent’s

truck was involved in a hit and run, a City police ofﬁcer

directly obtained information from the victim, including a photograph of the truck license plate, and entered

the vehicle as “wanted” in REJIS, an information sharing system utilized by law enforcement agencies in the

St. Louis metropolitan area. This same process occurs

in a national level database as well. The National

Crime Information Center (“NCIC”), an electronic

clearinghouse of crime data, has been referred to as the

lifeline of law enforcement. See National Crime Information Center (NCIC), 2016, Dept. of Justice Criminal

Justice Information Services Division, https://www.fbi.

gov/services/cjis/ncic. The NCIC database includes

twenty-one folders, one of which is titled “vehicle ﬁle.”

Id. The vehicle ﬁle includes records on stolen vehicles,

vehicles involved in the commission of crimes (such as

the case here), or vehicles that may be seized based on

a federally issued court order. Id. NCIC can be accessed

by virtually every criminal justice agency nationwide,

twenty-four hours a day, 365 days a year. Since its inception, NCIC has operated under a shared management concept between the FBI and federal, state, local,

and tribal criminal justice users. Id. Using databases

like NCIC and REJIS, law enforcement agencies across

the country communicate about automobiles using

designations such as “wanteds” or “hot sheets.”

In this case, respondent’s truck was involved in

the crime of leaving the scene of an accident, also

known as a hit and run. Mo.Rev.Stat. §577.060. According to the AAA Foundation for Trafﬁc Safety, one hit

and run crash occurs every minute on U.S. roads with

an average of 682,000 hit and run crashes occurring

each year since 2006. See “Hit-and-Run Deaths Hit

Record High,” AAA, April 26, 2018, https://newsroom.

aaa.com/2018/04/hit-run-deaths-hit-record-high/. As law

enforcement often has little more than a license plate

number and description of a vehicle in seeking to apprehend a hit and run motorist, entering the vehicle as

“wanted” based on probable cause is usually the only

way to track down the vehicle and offender involved.

Given the prevalence of hit and run incidents, and

the nationwide utilization of information databases by

law enforcement agencies to run checks on vehicles

detained in investigative stops, it requires no stretch

of the imagination to infer that countless automobiles

are stopped, if not seized, pursuant to “wanted” reports

of theft or hit and run, not to mention other criminal

activity.

Thus, the City’s policy of reporting vehicles as

“wanted” when ofﬁcers have probable cause to believe

that the vehicle is the instrumentality of a crime, such

as a hit and run, is far from unique. Numerous municipalities across the country have similar policies and

procedures. For example, the Chicago Police Department allows ofﬁcers to request a tow after ﬁrst establishing “if the vehicle is stolen or wanted for

investigation in connection with a crime and is needed

for further investigation by requesting a vehicle

check.” Vehicle Towing and Relocation Operations, Directives.chicagopolice.org (2019), http://directives.chicago

police.org/directives/data/a7a57bf0-12cf02e7-7b112cf05-8178a29c2a3f9355.html. Similar policies to impound a vehicle as evidence without a warrant, on probable cause, exist in other municipalities. See, e.g., City of

Westminster Police Department Policies, Westminstermd.

gov (2019), http://www.westminstermd.gov/Document

Center/View/1507/City-of-Westminster-Police-DepartmentPoliciespdf (allowing an ofﬁcer to authorize the tow of

a vehicle when there is probable cause to believe that

the vehicle was involved in a criminal or serious

motor vehicle offense and it contains instrumentalities

or evidence of a crime, or the vehicle is an instrumentality of the offense and may be used as evidence);

Vehicle Impounds, Lancaster-tx.com (2019), https://

www.lancaster-tx.com/DocumentCenter/View/11308/

7_03_1 – Vehicle-Impounds (allowing an ofﬁcer to impound as evidence a vehicle without a warrant from a

public place when there is probable cause to believe

that the vehicle has been used in the commission of a

crime, excluding minor trafﬁc offenses); 2008 Code of

Ordinances and Resolutions of the Uniﬁed Government of Wyandotte County/Kansas City, Kansas Sec.

35-196(9) (authorizing a police ofﬁcer to tow a vehicle

if there is” probable cause to believe the vehicle has

been used in the commission of a crime and that its

retention as evidence is necessary”). Given the prevalence of these policies, a conclusion that a “custom” of

utilizing “wanted” reports to seize automobiles without

a warrant, on probable cause, is unconstitutional has

profound implications for law enforcement nationwide.

The Fourth Amendment has never been construed

to forbid warrantless seizures of automobiles in public

places, on probable cause to believe that the automobile itself is forfeitable or simply evidence of a crime.

On the contrary, such seizures are well within the “automobile exception” to the warrant requirement of the

Fourth Amendment. Indeed, it is entirely proper, when

police have probable cause to search an automobile, to

seize it at least temporarily and remove it to another

location to conduct the search. Florida v. White, 526

U.S. 559 (1999); G.M. Leasing Corp. v. United States,

429 U.S. 338 (1977); Texas v. Brown, 460 U.S. 730

(1983); Chambers v. Maroney, 399 U.S. 42 (1970); cf.

Warden v. Hayden, 387 U.S. 294 (1967). Furthermore,

it is well established that ofﬁcers may rely on “wanted”

reports from other jurisdictions in detaining or arresting a person; a fortiori, reliance on a “wanted” report to

seize a vehicle is entirely proper under the Fourth

Amendment. See United States v. Hensley, 469 U.S. 221

(1985); United States v. Conlan, 786 F.3d 380 (5th Cir.

2015); United States v. Noster, 590 F.3d 624 (9th Cir.

2009), cert. denied, 559 U.S. 1054 (2010).

Thus, the Court of Appeals has seriously misconstrued the constitutionality of a warrantless seizure of

an automobile on probable cause, due to a “wanted” report, and this misconstruction raises the specter of

enormous potential liability for local governments and

contractors such as petitioner Doc’s Towing under

§1983. Of even greater consequence, the Eighth Circuit’s mistaken view of the Fourth Amendment will

practically foreclose reliance on “wanted” reports in

seeking to apprehend not only hit and run motorists

but all manner of other criminals whose automobiles

may be the only evidence linking them to serious

crimes. See, e.g., United States v. Pleasant, 2017

U.S.Dist.LEXIS 181393 (E.D.Pa. 2017), for a particularly apt example of the use of a “wanted” to ﬁnd and

seize a vehicle in connection with a robbery. The petition ought to be granted because the questions presented herein are of serious national importance and

must be settled by this Court.

II.

The petition should be granted because the

questions presented are questions of serious national importance in regard to deﬁning the dimensions of municipal liability

under 42 U.S.C. §1983, which are in urgent

need of reexamination by this Court, in that

the opinion of the Court of Appeals exempliﬁes a systemic failure of the lower federal

courts to apply “rigorous standards” of culpability and causation in §1983 actions

premised on municipal “custom.”

The late Justice SCALIA, in another context, lamented, “The §1983 that the Court created in 1961

bears scant resemblance to what Congress enacted

almost a century earlier. . . . Monroe [v. Pape] changed

a statute that had generated 21 cases in the ﬁrst 50

years of its existence into one that pours into the federal courts tens of thousands of suits each year, and

engages this Court in a losing struggle to prevent the

Constitution from degenerating into a general tort

law.” Crawford-El v. Britton, 523 U.S. 574, 611 (1998)

(dissenting opinion). Similarly, the standard of municipal liability under §1983 as applied by the Court of

Appeals in this case bears little resemblance to the

“rigorous standards of culpability and causation” demanded by this Court in Board of County Commissioners v. Brown, 520 U.S. 397 (1997). Likewise, the Court

of Appeals’ analysis ﬂies in the face of City of St. Louis

v. Praprotnik, 485 U.S. 112 (1988) and kindred cases in

its casual identiﬁcation of persons having policymaking authority sufﬁcient to approve a purportedly unconstitutional “custom.”

It cannot be gainsaid that §1983 makes actionable

a deprivation of federally protected rights on the basis

of “custom.” However, it is signiﬁcant that, in its original delineation of municipal liability under §1983, this

Court adverted to Adickes v. S.H. Kress & Co., 398 U.S.

144 (1970). See Monell v. Dept. of Social Services, 436

U.S. 658, 690-91 (1978). The Adickes case, of course, involved a custom of using facially neutral laws to enforce racial segregation in public restaurants – a

custom that had the force of law. This “force of law”

theme recurs throughout this Court’s cases applying

§1983 based on claims of unconstitutional “custom.”

However, the decision of the Court of Appeals in this

case demonstrates just how far the lower courts have

departed from this essential requirement to fasten liability on municipalities (or at least subject them to

trial) for practices that are never shown to be unconstitutional or, more importantly, never shown to be

known to and approved of by true municipal policymakers.

In this case, neither the District Court nor the

Court of Appeals adverted to any evidence that any

policymaker of the City knew of and approved an unconstitutional custom of seizing vehicles without a

warrant. It is well established that the issue of who are

municipal policymakers is a question of law, not fact,

and the answer to the question must be found in state

law. St. Louis v. Praprotnik, supra; see also McMillian

v. Monroe County, 520 U.S. 781 (1997); Jett v. Dallas

Ind. Sch. Dist., 491 U.S. 701, 737 (1989). The Court of

Appeals asserted that petitioner City did not “contest”

the policymaking status of two witnesses, App. A, p. A7, but that was incorrect, and the Court never troubled

to make any inquiry into the witnesses’ status as a

matter of state law. Regardless, the Court overlooked

the basic question of whether the “custom” of using

“wanteds” to secure warrantless seizures was known to

any policymaker as ever having previously resulted in

an unconstitutional seizure.

For a municipality to be liable on the strength of a

custom, the custom must have the force of law. It must,

therefore, be such an entrenched, persistent and widespread practice that ofﬁcers of a municipality will always and everywhere observe it. Cf. City of Los Angeles

v. Lyons, 461 U.S. 95 (1983). The use of “wanteds” in

this case evinces no such force of law. There is no parallel to Adickes. There is no showing that petitioner

City’s ofﬁcers ever routinely used “wanteds” as an arbitrary means to harass citizens and deprive them of

their property for no good reason, or as a way to evade

established warrant requirements. The kind of custom

that Congress was aiming at was the sort of thing that

led to the enactment of Reconstruction legislation in

the ﬁrst place: deliberate government practices designed and deliberately implemented to deprive citizens of their rights.

Furthermore, liability based on “custom” requires

the additional showing that the custom was the “moving force” in a constitutional violation. This raises the

issue of causation; another issue on which the Court of

Appeals went badly astray. The District Court quite

correctly held that respondent Meier wholly failed to

make the causal connection between petitioner City’s

conduct and the seizure and detention of the Meier

truck. App. B, p. A-16. The Court of Appeals seems to

have applied a simplistic and entirely incorrect notion

of post hoc ergo propter hoc causation: petitioner City’s

ofﬁcers issued a “wanted,” and petitioner Doc’s Towing

detained the truck, so the City’s “custom” caused deprivation of the truck. In the process, the Court of Appeals ignored the conduct of the suburban ofﬁcers who

seized the truck and the decision of Doc’s Towing not

to release it, despite having no communication with St.

Louis ofﬁcers. If this causation analysis passes muster,

then a municipality can be liable for the conduct of

third parties everywhere, so long as a plaintiff can

identify some municipal practice that the third party

decided to take as its guide in infringing someone’s

property interests.

Of course, the causation analysis of the Court of

Appeals ignored another salient point: the “custom” it

identiﬁed was neither unconstitutional nor was any

policymaker (even the two straw men identiﬁed by the

Court of Appeals) shown to have known that it was

causing any constitutional violations.2 As long ago as

City of Oklahoma City v. Tuttle, 471 U.S. 808 (1985),

this Court made it clear that §1983 liability on a

This case does not involve the issue of application of the

exclusionary rule in a situation where ofﬁcers mistakenly rely on

erroneous information, although even reliance on erroneous information may not result in a Fourth Amendment violation. Cf.

Herring v. United States, 555 U.S. 135 (2009). However, there is

no dispute here that the information underlying the “wanted” was

accurate and accurately reported.

“custom” theory cannot be predicated on a single incident of unconstitutional conduct of a government employee. Furthermore, this Court has tried to make it

clear that municipal liability based on unofﬁcial policy

or custom must be based on clear proof of a deliberate

choice by municipal policymakers. Board of County

Commissioners v. Brown, 520 U.S. at 400, 405. In this

case, the claim is not that petitioner City itself inﬂicted

injury, but that its custom caused others – not its employees and not even governmental ofﬁcers – to do so.

In this context, the Court of Appeals simply failed to

apply the rigorous standards of culpability and causation that this Court deems essential to liability.3

Because of the expansive scope and broad application of §1983, it long ago became, in the words of Justice POWELL, the “most explosive source of Federal

jurisdiction.” Lewis F. Powell, “Are the Federal Courts

Becoming Bureaucracies?,” 68 A.B.A. J. 1370, 1372 (No.

1982). Government employees commit torts every day.

If a pattern of careless driving is enough to show an

actionable custom under §1983 to deprive persons of

property without due process, Justice SCALIA’S lament

will have become more than a lament: it will have

This is so even if the “custom” in question was the detention

of the truck and not the seizure alone. There is nothing in the

opinions of the District Court or the Court of Appeals to suggest

that the record shows any repeated detentions of seized vehicles

for prolonged periods by either petitioner City or petitioner Doc’s

Towing. In any event, respondent had a remedy to secure return

of the truck under state law. Mo.Rev.Stat. §542.301. However, it

is clear that the “custom” found by the Court of Appeals related

to the warrantless seizure pursuant to a “wanted.”

become a prophecy fulﬁlled. In 2018 alone, the federal

courts saw a six percent increase in civil rights ﬁlings.

Federal Judicial Caseload Statistics 2018, ADMINISTRATIVE OFFICE OF THE U.S. COURTS, https://www.uscourts.

gov/statistics-reports/federal-judicial-caseload-statistics2018. There can be little doubt that the opinion of the

Court of Appeals in this case, with its almost dilettantish approach to the analysis of custom and causation

under §1983, should not be left uncorrected by this

Court so as to further exacerbate the boundless expansion of liability of municipalities (or non-governmental

actors) under that statute.

The opinion of the Court of Appeals encourages litigants to attempt to hold a municipality responsible for

actions of a third party over which the municipality

has had no direct or even indirect control, and absent

evidence that municipal policymakers had any reason

to know that a constitutional violation could have been

taking place. The time has come for this Court to further reﬁne the standards of municipal liability under

§1983, and insist that claims against a municipality on

the basis of “custom or usage” cannot proceed unless

there is adequate proof of the sort of custom identiﬁed

in Adickes, supra; i.e., a custom or usage that is not

only unconstitutional but that impels governmental

employees always or nearly always to act in a certain

way with regard to a speciﬁc constitutional injury, and

that exists with notice to identiﬁable policymakers

that such injuries have occurred, will continue to occur,

and that the policymakers consciously chose not to

undo. The City of St. Louis in 2019 is not Hattiesburg,

Mississippi, in 1964. This Court can and should act to

review the judgment in this case and clarify standards

of municipal liability in this critical area of federal law.

III. The petition should be granted because the

judgment of the Court of Appeals is in direct

conﬂict with decisions of this Court, of

other Courts of Appeals, and of state courts

in the matter of warrantless seizure of automobiles in public places, on probable cause,

and the lower court’s error can only be corrected by this Court.

Petitioners have already alluded to the direct conﬂict between the opinion of the Court of Appeals in this

case and controlling precedent from this Court. Florida

v. White, G.M. Leasing Corp. v. United States, Texas v.

Brown, Chambers v. Maroney, all supra. If that were

not enough to warrant review (and perhaps even summary reversal), the Eighth Circuit has created a direct

conﬂict between itself and at least three other Circuits

as well.

In United States v. Noster, supra, the Ninth Circuit

rejected a claim of violation of the Fourth Amendment

when ofﬁcers relied on a stolen truck report, based on

probable cause, in a law enforcement database in seizing and searching a truck. In Bell v. City of Chicago,

835 F.3d 736 (7th Cir. 2016), cert. denied, 137 S.Ct.

1231 (2017), the Seventh Circuit rejected a Fourth

Amendment challenge to a city ordinance (not a “custom”) that authorized seizure and impoundment of vehicles, without a warrant, on probable cause to believe

they contained a controlled substance or were used in

illegal drug transactions. In so holding, the Seventh

Circuit read Florida v. White to support the proposition

that there is no constitutional difference between an

immediate search based on actual knowledge that the

vehicle contains contraband and a discretionary seizure based on a reasonable belief that the vehicle at

some past time had been used to assist in illegal activity. 835 F.3d at 740. Similarly, in United States v.

Cooper, 949 F.2d 737 (5th Cir. 1991), a case in which

police acted on a reported description of a car as involved in a robbery, the Fifth Circuit stated plainly,

“We believe that probable cause alone also sufﬁces to

justify seizing a vehicle on a public street as evidence

or instrument of crime. As a warrant is not required

when the police have probable cause to believe that the

car contains evidence of crime, there is little sense in

requiring a warrant before seizing a car when the police have probable cause to believe the car itself is such

evidence or is an instrument of crime.” 949 F.2d at 747.

There is also conﬂict with the decisions of various state

courts. See Lum v. Donohue, 101 Haw. 422, 70 P.3d 648

(2003); Lagaite v. State, 995 S.W.2d 860 (Tex.App.1999);

State v. Brereton, 345 Wis.2d 563, 826 N.W.2d 369 (2013).

Finally, the Eighth Circuit’s apparent alternative

pronouncement that petitioner’s “unwritten but widespread and persistent policy of reporting vehicles as

wanted for the purpose of detaining them without a

warrant” amounts to a constitutional violation is also

in conﬂict with this Court’s decision in City of West

Covina v. Perkins, 525 U.S. 234 (1999). In that case, this

Court held that there was no Fourteenth Amendment

violation when police lawfully seized property of someone not a party to a crime, so long as notice of the seizure and identity of the seizing entity were provided to

the owner, even though no notice of available remedies

for return of the property was given. In the case at bar,

respondent owner had notice of seizure and could have

invoked readily available remedies to seek the truck’s

return under state law, Mo.Rev.Stat. §542.301. Thus,

the Eighth Circuit’s opinion conﬂicts with the jurisprudence of this Court under both the Fourth and Fourteenth Amendments.

Certiorari is warranted in this case to resolve the

conﬂicts with the cases of this Court and of other Circuits and state courts, created by the Eighth Circuit’s

opinion.

------------------------------------------------------------------

CONCLUSION

For the foregoing reasons, certiorari should issue

to the Court of Appeals for the Eighth Circuit so that

this Honorable Court may review and correct the decision below.

Respectfully submitted,

*Counsel of Record

JULIAN L. BUSH

City Counselor

ROBERT H. DIERKER*

J. BRENT DULLE

Associate City Counselors

MEGAN BRUYNS

AMY RAIMONDO

Assistant City Counselors

314 City Hall

1200 Market St.

St. Louis, MO 63103

314-622-3361

dierkerr@stlouis-mo.gov

Attorneys for Petitioner

City of St. Louis

JOSHUA G. VINCENT

HINSHAW & CULBERTSON LLP

151 N. Franklin St.

Suite 2500

Chicago, IL 60606

312-704-3000

jvincent@hinshawlaw.com

Attorneys for Petitioner

Doc’s Towing, Inc.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.