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In Krimstock, the Southern District of New York found that Younger did not apply in a case challenging the seizure of cars after DWI arrests in New York.
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99 Civ. 12041(MBM).
November 13, 2000.
THOMAS M. O'BRIEN, ESQ., STEVEN B. WASSERMAN, ESQ., (Attorneys for Plaintiffs) The Legal Aid Society, New York NY.
MICHAEL D. HESS, ESQ., Corporation Counsel of the City of New York WILLIAM S.J. FRAENKEL, ESQ., Assistant Corporation Counsel (Attorneys for Defendants) Corporation Counsel of the City of New York, New York, New York
OPINION and ORDER
Section 14-140 of the New York City Administrative Code ("Property Clerk Law") authorizes the Police Department to seize the vehicle of a person arrested for a crime when the vehicle is "suspected of having been used as a means of committing the crime." N.Y.C. Admin. Code § 14-140 (1996). If the Police receive a demand from the vehicle's owner for its return, they must either return it, or the Department's Property Clerk must start a civil forfeiture action within 25 days to obtain ownership of the vehicle. RCNY § 12-36. In this putative class action, plaintiffs, whose vehicles have been seized, sue the City, on behalf of themselves and others similarly situated, under 42 U.S.C. § 1983, on the ground that the forfeiture procedures violate the Due Process Clause of the Fourteenth Amendment. In particular, plaintiffs claim that the "Due Process Clause . . . requires that those persons whose cars are seized by the police and held for forfeiture under the Administrative Code must receive a prompt hearing at which they can challenge the legitimacy and necessity of the impoundment of the car for the duration of the forfeiture case." Plaintiffs claim also that the Due Process Clause requires that "those persons whose cars have been seized and held for forfeiture receive a meaningful opportunity to be heard in their requests for the assistance of court-appointed counsel in the forfeiture case."
Plaintiffs move for class action certification pursuant to Fed.R.Civ.P. 23, and for a preliminary injunction pursuant to Fed.R.Civ.P. 65, ordering that "unless a person whose automobile is seized and held for forfeiture receives a prompt hearing on the legitimacy and necessity of defendants' continued detention of the car, the vehicle be released to the owner for the pendency of the litigation." Plaintiffs also seek a preliminary injunction ordering that "if a car owner subjected to forfeiture has not had a meaningful opportunity to request court appointed counsel in the case, then the car should be returned to him as its lawful claimant, until the counsel determination is made by a court." The City cross-moves pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss the complaint. For the reasons stated below, the motion to dismiss is granted.
I.
For the purpose of deciding the motion to dismiss, the material facts alleged in the complaint are assumed to be true. See Cooper v. Pate, 378 U.S. 546, 546 (1964) (per curiam). The vehicles of six of the seven named plaintiffs — Valerie Krimstock, Charles Flatow, Ismael Delapaz, Clarence Walters, James Webb, and Michael Zurlo — were seized after each was arrested for Driving While Intoxicated ("DWI"). (Id. ¶ 9) These six named plaintiffs have all pleaded guilty to the non-criminal violation of driving while impaired. (Id.) The vehicle of the seventh named plaintiff, Sandra Jones, was seized when her husband was arrested for drug and weapon possession; those charges were dismissed. (Id. ¶ 29) The Property Clerk started civil forfeiture proceedings against all seven in the civil part of the New York Supreme Court. (Id. ¶¶ 12, 15, 17, 21, 24, 26, 30) As of December 14, 1999, when the complaint was filed, the forfeiture cases of all seven plaintiffs were pending, but none had received a hearing, and their vehicles remained in the Property Clerk's custody. (Id. ¶ 10)
II.
Defendants argue that this court should dismiss plaintiffs' complaint because under Younger v. Harris, 401 U.S. 37 (1971) and subsequent cases, federal courts must abstain when exercising jurisdiction would interfere with state criminal proceedings or certain types of state civil proceedings. Defendants contend that hearing plaintiffs' claims here would interfere with the Property Clerk's forfeiture actions. (Def. Mem. at 5) Younger abstention is appropriate when 1) there is an ongoing state proceeding; 2) the proceeding involves important state interests; and 3) the state proceeding provides an adequate opportunity for the plaintiff to raise his constitutional claims. See Phillip Morris, Inc. v. Blumenthal, 123 F.3d 103, 105 (2d Cir. 1997).
State proceedings are ongoing until the parties exhaust their state appellate remedies. See Huffman v. Pursue, Ltd, 420 U.S. 592, 608 (1975). The Property Clerk's forfeiture proceedings were pending in New York Supreme Court when plaintiffs' complaint was filed. Thus, plaintiffs do not suggest that they have exhausted their appellate remedies. Rather, they argue that the forfeiture suits are not ongoing "in any realistic sense" because once plaintiffs answered the Property Clerk's summonses, the Clerk has done nothing to advance the cases. (P1. Reply Mem. at 15) Plaintiffs fail to provide any legal support for this argument. Moreover, state court defendants can cause the clerk to place a case on the court's trial calendar by filing a note of issue. See N.Y. C.P.L.R. § 3402 (McKinney 1990) Accordingly, the forfeiture proceedings are ongoing.
State proceedings involve an important state interest if they "concern the central sovereign functions of state government."Phillip Morris, Inc., 123 F.3d at 106. Furthermore, a federal court should consider not only the state's interest in the outcome of a particular case, but also the "underlying nature" of that class of cases. Id. The Property Clerk's forfeiture proceedings act to complement and strengthen the state's law enforcement efforts by depriving those who commit dangerous offenses of the means of repeating those offenses. Accordingly, the forfeiture proceedings involve an important state interest.
Finally, federal courts should not abstain unless the state proceeding provides an adequate opportunity to raise constitutional claims. Here, the forfeiture proceedings do adequately permit plaintiffs to claim the due process right to a meaningful opportunity to request court-appointed counsel. Plaintiffs do not disagree that they would be able to raise this claim as individual defendants in the forfeiture proceedings. They argue instead that their individual state court proceedings cannot provide the "broad-based" class relief they request here. (P1. Reply Mem. at 15-16). In support of that argument, they mistakenly cite La Shawn A. by Moore v. Kelly, 990 F.2d 1319 (DC Cir. 1990). However, in that case, the Court did not deny abstention because the federal suit was a class action. Rather, the Court held narrowly that the state proceedings in the Family Division of the D.C. Courts were "not suitable arenas" for the plaintiffs' federal claims. Id. at 1323-24. Moreover, in Juidice v. Vail, 430 U.S. 327, 331, 337 (1977), the Supreme Court upheld a federal district court's abstention on the ground that each member of a class of judgment creditors had an adequate opportunity to raise constitutional claims in individual state proceedings.
Accordingly, I will abstain from hearing plaintiffs' claim that they have a due process right to a meaningful opportunity to request court-appointed counsel. Defendants' motion to dismiss is granted with respect to that claim.
The forfeiture proceedings do not, however, provide an adequate opportunity for plaintiffs to claim a due process right to a prompt probable cause hearing. After claimants demand the return of their vehicle, the Property Clerk has 25 days to begin forfeiture proceedings. Thus, plaintiffs would not be able to raise their due process claim for at least 25 days, and even if the state court immediately ruled in plaintiffs' favor on that claim, the time for a prompt probable cause hearing would already have passed. In Gerstein v. Pugh, 420 U.S. 103, 108 n. 9 (1975), the plaintiffs also claimed a due process right to prompt probable cause hearings, in that case after their arrest. The Supreme Court upheld the decision to hear the plaintiffs' claim rather than to abstain under Younger because the "legality of pretrial detention without a judicial hearing . . . could not be raised in defense of the [state] prosecution." Accordingly, I am not required to abstain from hearing plaintiffs' claim that they have a due process right to prompt probable cause hearings.
Defendants argue also that the court should dismiss plaintiffs' complaint because under Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976) and subsequent cases, federal courts could, in "exceptional circumstances," abstain when there are concurrent state and federal proceedings.Sheerbonnet, Ltd. v. American Express Bank, 17 F.3d 46, 49 (2d Cir. 1994). Defendants maintain that the concurrent state proceeding here is Grinberg v. Safir, 266 A.D.2d 43, 698 N.Y.S.2d 218 (1st Dep't 1999), in which the plaintiffs claim, inter alia, that the application of the Property Clerk Law to persons arrested for DWI violates the Due Process Clause. I need not consider whether Grinberg warrants abstention under Colorado River because on February 29, 2000, the New York Court of Appeals dismissed the plaintiff's appeal from the Appellate Division's decision, see Grinberg v. Safir, 94 N.Y.2d 898, 707 N.Y.S.2d 143 (2000), and Grinberg is no longer a "concurrent" proceeding. For the above reasons, I am not required to abstain either underYounger or Colorado River from hearing plaintiffs' claim that they have a due process right to a probable cause hearing.
III.
Defendants argue that the court should, nevertheless, dismiss plaintiffs' claim that they have a due process right to a probable cause hearing because the Property Clerk's existing procedures provide due process. (Def. Mem. at 11) The Fourteenth Amendment's Due Process Clause guarantees that no State shall "deprive any person of life, liberty, or property, without due process of law." That guarantee usually requires that the government provide notice and an opportunity to be heard before a person is deprived of property. See United States v. James Daniel Good Real Property, 510 U.S. 43, 47 (1993). However, the government may postpone the notice and hearing in "extraordinary circumstances." Id. at 53. Plaintiffs acknowledge that it would be "impractical" to provide a hearing before seizing a vehicle in the "typical DWI arrest." (P1. Mem. at 20) Rather, they argue that due process requires the government to provide them with a prompt probable cause hearing "in a matter of days, not weeks or months." (Id. at 30)
Defendants respond that the Property Clerk's existing procedures have been challenged in the past as violating due process, and the Second Circuit has declared that they were constitutional. (Def. Mem. at 10-11) They cite Butler v. Castro, 896 F.2d 698, 699 (2d Cir. 1990), in which the Court stated that "the actual procedures followed by the City with regard to the disposition of seized items are constitutionally valid." (Def. Mem. at 10) At least one district court in this Circuit has characterized the Circuit's statement in Butler as affirming the constitutionality of the Clerk's existing procedures. In Leyh v. Property Clerk, 774 F. Supp. 742, 746 (E.D.N.Y. 1991), Judge Glasser said "[t]he Second Circuit has had occasion to review the substance of [the procedures], and the court declared [them] to be 'constitutionally valid.'" Similarly, in a more recent Second Circuit case, Alexandre v. Cortes, 140 F.3d 406, 409 (2d Cir. 1998), the Court referred to the order creating the existing procedures as establishing "constitutional procedures for the disposition of property held by the clerk."
However, the Court in Butler did not examine the hearing provided under the Property Clerk's procedures. Rather, the Court addressed whether the claimant had received notice of the procedures for recovering his vehicle. See Butler, 896 F.2d at 703. The court in Alexandre also addressed a different issue — whether arrestees received notice and an opportunity to contest the release of their vehicles to lienholders. See Alexandre, 140 F.3d at 413. In neither case was the Second Circuit required to consider whether the hearing provided under the existing procedures provides due process. In addition, when the courts inButler and Alexandre reviewed the Property Clerk's existing procedures, the Clerk had only 10 days to initiate a forfeiture proceeding; under current regulations, the Clerk has 25 days. RCNY § 12-36. Thus, although I am mindful of these passing approvals of the Clerk's existing procedures, I must nonetheless consider whether the forfeiture proceeding under the existing procedures provides due process.
Plaintiffs contend that the proceeding does not provide due process, because the Second Circuit has held that when the United States Customs Service seizes vehicles under 19 U.S.C. § 1602 et seq., which governs forfeitures for violations of the customs laws, it must provide claimants with a prompt probable cause hearing. In Lee v. Thornton, 538 F.2d 27, 33 (2d Cir. 1976), Customs agents arrested Lee for bringing undeclared people, merchandise, and marijuana into the country and also seized the vehicle he used to transport those items. See id. at 30-31. The agents told Lee that his vehicle could be forfeited but that he had a right to petition Customs for "remission or mitigation" of the forfeiture. Customs would remit or mitigate a forfeiture if the agency found mitigating circumstances. In Lee, Customs mitigated but did not remit the forfeiture of the vehicle, and the plaintiff paid $100 for the return of his car. See id.
In general, when Customs does not grant a petition for mitigation, the United States Attorney may sue for forfeiture of the vehicle. See United States v. $8,850, 461 U.S. 555, 557-58 (1983). In Lee the Court found that the United States Attorney's "condemnation proceedings necessarily consume substantial periods of time," and that "(d]eprivation of means of transportation for such periods requires an opportunity to be heard." Lee, 538 F.2d at 32. The Court held, therefore, that when "vehicles are seized for forfeiture . . . actions on petitions for mitigation or remission should be required within 24 hours," and a "hearing on probable cause for the detention . . . within 72 hours if the petition is not granted in full." Id. at 33.
Although Lee does appear to hold under similar circumstances that due process requires a prompt probable cause hearing, Lee has been implicitly overruled by two subsequent Supreme Court decisions also addressing the forfeiture procedures under 19 U.S.C. § 1602 et. seq. In United States v. S8.850, 461 U.S. 555, 555 (1983), Customs seized $8,850 from the claimant when she failed to declare the money upon entering Los Angeles International Airport. Customs referred the case to the U.S. Attorney who filed a complaint seeking civil forfeiture in federal District Court 18 months later. See id. at 560-61. As one of her defenses to that suit, the claimant argued that the government's "dilatory" commencement of the suit violated her due process right to a hearing at a meaningful time. When her claim reached the Supreme Court, the Court characterized the issue in$8,850 as "when the post-seizure delay may become so prolonged that the dispossessed property owner has been deprived of a meaningful hearing at a meaningful time." Id. at 562-63. The Court then explained that this issue of when the government's delay in initiating a civil forfeiture suit violates the due process right to a hearing is analogous to the issue of when the government's delay violates one's right to a speedy trial. See id. at 564. On the basis of that analogy, the Court then applied the test that it had developed in Barker v. Wingo, 407 U.S. 514 (1972) to resolve the speedy trial issue in order to determine whether Customs' 18-month delay in initiating the forfeiture suit had violated claimant's due process right to a "meaningful hearing at a meaningful time," and held that Customs' delay in instituting civil forfeiture proceedings was reasonable. Id. at 564-69.
Plaintiffs respond that $8,850 does not apply to this case because $8,850 concerns the "time limits within which a federal forfeiture action itself must be initiated," rather than the "timing of the initial post-seizure hearing." (P1. Reply Mem. at 7) This limited reading of $8,850 might be plausible if the Supreme Court itself had not read the case more broadly. Less than three years later the Supreme Court addressed 19 U.S.C. § 1602 et seq. again. In United States v. Von Neuman, 474 U.S. 242 (1986), the claimant argued that Customs' 36-day delay in responding to his petition for mitigation or remission violated his right to due process. See Von Neuman, 474 U.S. at 243. The Ninth Circuit had held that due process requires Customs to act promptly in ruling on petitions for remission or mitigation under 19 U.S.C. § 1602 et. seq. See id. at 247. The Supreme Court reversed. The Court explained that due process did not require Customs to act promptly on the petition because "[i]mplicit in this Court's discussion of timeliness in $8,850 was the view that the forfeiture proceeding, without more, provides the post-seizure hearing required by due process . . . ." Id. at 249. The Court reiterated this message when it wrote, "we have already noted that [claimant's] right to a forfeiture proceeding meeting the Barker test satisfies any due process right with respect to the car. . ." Id. at 251. If the due process right to a meaningful post-seizure hearing under 19 U.S.C. § 1602 et seq. requires only the forfeiture proceeding, it does not also require a probable cause hearing, and the Second Circuit's decision in Lee holding to the contrary must be considered overruled.
Although due process does not requires a probable cause hearing when vehicles are seized under 19 U.S.C. § 1602 et seq., it might require a probable cause hearing when vehicles are seized under the Property Clerk Law. The Supreme Court's explanation in Von Neuman that in the Customs cases due process requires only a forfeiture proceeding addressed facts different from those in this case. In this case, for example, claimants' vehicles are seized for driving while intoxicated rather than smuggling; they are seized by local rather than federal law enforcement officers; and the forfeiture proceeding is brought by the Property Clerk rather than a United States Attorney. One or more of the differences between the Customs cases and this case might warrant providing plaintiffs with a probable cause hearing.
To determine whether these differences require providing a probable cause hearing, we consider the three interests the Supreme Court identified in Mathews v. Eldridge, 424 U.S. 319 (1972) as relevant to deciding whether due process requires an additional safeguard. See United States v. Monsanto, 924 F.2d 1186, 1193 (2d Cir. 1991). In Mathews, the Supreme Court explained that to determine whether due process requires procedural safeguards in addition to those provided, the court must weigh the "'private interest that will be affected by the official action,' 'the risk of erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute safeguards;' and lastly, 'the government's interest, including the function involved and the fiscal or administrative burdens that the additional or substitute procedural requirement would entail.'" Id.
The weights of those interests in this case do not require providing plaintiffs with the additional safeguard of a probable cause hearing. The private interest affected by the official action is the same: a person's use of his vehicle. Further, the importance of that interest might be even greater for persons whose vehicles are seized by Customs. They are likely to be stranded at a "remote border point[s] far from their destination," where it would be difficult to find alternative transportation. Lee, 538 F.2d at 33. Under the Property Clerk Law at issue here, vehicles are not seized at a "remote border" location. Indeed, they are seized in a jurisdiction that abounds in mass transit facilities. Similarly, the risk of erroneous deprivation of that interest is based in both cases on the reliability of the same procedure: a probable cause arrest. Plaintiffs do not allege any facts suggesting that the use of that procedure to determine whether a person has committed an offense for which a vehicle would be subject to forfeiture under the Property Clerk Law is unusually unreliable. Plaintiffs also do not allege facts suggesting that a probable cause hearing in drunk driving cases would be more valuable in eliminating the risk of erroneous deprivation that attaches to the use of probable cause arrests than it would be in other cases, including Customs cases.
The government's interest in both cases is to supplement law enforcement. Analyzing this interest also requires that I consider the fiscal or administrative burden that conducting the probable cause hearing would entail. In Lee, the court found that the cost to the government of conducting probable cause hearings in the Customs cases "would not be great since . . . machinery is readily available and . . . is not in use in [similar] cases."Id. Plaintiffs allege that the Police seized 1,162 vehicles from February to November 1999 for DWI and that this "class of persons is increasing daily." (Comp. ¶ 37) Therefore, it is likely that the cost of conducting probable cost hearings here would be far more burdensome that the minimal burden described by the Court in the Customs cases.
Because the Mathews interests do not weigh any more in favor of claimants in Property Clerk cases than they do in Customs cases, and because those interests are deemed fully protected in Customs cases by no more than a forfeiture proceeding, see Von Neuman, 474 U.S. 249, plaintiffs' due process right to a meaningful hearing at a meaningful time does not require the additional safeguard of a probable cause hearing. Accordingly, defendant's motion to dismiss plaintiffs claim that due process entitles them to a prompt post-deprivation probable cause hearing is granted.
* * *
For the reasons stated above, defendants' motion to dismiss plaintiffs' complaint is granted.