Wednesday, June 21, 2017

Brewster v. Bick (9th Cir. - June 21, 2017)

I'm genuinely confused.

I'm incredibly sympathetic with the result reached in today's opinion by Judge Kozinski.  It's absurd that Los Angeles has a law that allows the city to impound a vehicle for 30 days -- a minimum of 30 days -- when it's driven by an unlicensed driver.  Sure, the City can impound the thing.  Sure, there's an interest in getting unlicensed drivers off the street.  But once (as here) the actual owner shows up, shows her valid license, and offers to pay all towing and impound costs, there's no doubt in my mind that the City should release the vehicle to her.  If she has to pay a subsequent fine as well, that's fine.  But the City says that even if all that happens, it has the right (and, under the law, a duty) to keep the vehicle in impound for the entire 30 days.  That's absurd, in my view.  Or at least incredibly unjust.

So when the Ninth Circuit today unanimously holds that this practice is unconstitutional, as a former vehicle owner in Los Angeles, I couldn't help but applaud.  Bravo.

Yet I seriously don't get the rationale behind the holding.

The City says that the seizure is an administrative penalty that's designed to stop unlicensed drivers, and also cites a plethora of cases that says that these sorts of things are permissible under the Fifth and Fourteenth Amendments.  Judge Kozinski's opinion, however, says that focuses on the wrong portion of the Constitution, and holds that the seizure here violates the Fourth Amendment because it's excessively lengthy.  Judge Kozinski says that the Fourth Amendment is simply different than the Fifth.

Judge Kozinski's definitely right that these are two different amendments.  He's also definitely right that there are indeed cases that say that an excessively long detention (of either property or a person) may well turn a valid search under the Fourth Amendment into an invalid one.

Okay, so they're different.  At least in part.

Let's put entirely to one side the fact that, in truth, as applied to alleged state misconduct (as here), both amendments are incorporated by the Fourteenth Amendment, so we're in truth actually only talking about the same amendment in both places.

Wholly apart from that, I just remain confused as to why the Fifth Amendment holdings aren't a substantive defense to the Fourth Amendment claim.

Judge Kozinski says that, sure, maybe the administrative penalty here is permissible.  Maybe it's okay under the substantive provisions of the Constitution (e.g., the Fifth Amendment) to punish someone who lets an unlicensed driver use her car by taking away that vehicle for thirty days.  That's an okay and legitimate way to deter such misconduct.  (In truth, you can tell from the footnotes that Judge Kozinski's not entirely sure that's right, but he concedes -- at least for purposes of argument -- that's perhaps true; he instead holds that it's irrelevant.  And the Fifth Amendment precedent here is indeed not so great for the plaintiffs, which likely underlies Judge Kozinski's argumentative concession.)

But, he says, just because you can validly seize a vehicle under the Fifth doesn't mean that a lengthy seizure is okay under the Fourth.


I gotta say, at least to me, it seems like the two inquiries have to overlap.  And I'm not exactly sure how Judge Kozinski's opinion deals with that overlap.

Let's take an easy example first.  A hypothetical.

Let's say that instead of saying 30 days', LA's ordinance is even harsher than it is, and says that if an unlicensed driver drives a vehicle, the City is allowed to take the vehicle.  It's forfeited.  Period.  That second and forever.  Let's also assume that such a seizure is permissible under the Fifth Amendment.  Then a plaintiff files a class action lawsuit (as here) that alleges that, regardless, that seizure violates the Fourth Amendment.

Well, geeze.  Plaintiff surely loses that one, right?  Because once the City grabbed the vehicle, it was theirs.  You weren't deprived of anything that was yours any more.  So the detention wasn't overly lengthy as far as you were concerned because the vehicle wasn't yours once the City seized it.  Seems to me that the City wins that case.

At a facial level, it would seem bizarre to me that a harsher ordinance that allowed a seizure forever (or for 1000 years) would be constitutional and yet a lesser ordinance that allowed a seizure for 30 days would suddenly become unconstitutional, no?

And the principle behind the hypothetical seems the same regardless of whether we're talking about pure ownership versus possessory interests.  The first thing one learns in Property class is that what we call "ownership" of a vehicle is really just a bundle of sticks.  Temporal possession is simply one of those sticks.  If the Fifth Amendment permits the City to punish you by taking away one of those sticks -- whether that stick is possession forever or for 30 days -- then once you commit the violation, you don't have that stick any longer.  So, to me, I'm not sure it makes sense to say that you've been deprived of that stick for an "excessive" period if we've already held that the City was entitled to take that stick entirely.  If they can seize the thing for 30 days as a penalty, then it's not yours (at least during that period), and you can't complain about that, under the Fourth Amendment or anything else.

So, if only as a doctrinal matter, I'm not entirely confident that Judge Kozinski's claim that the City's "focusing on the wrong Amendment" totally holds water.  Seems to me like there's huge overlap, and I leave the opinion -- even after thinking about it quite a bit -- wondering what the panel's response to this argument entails.

And then there's the additional little problem of precedent.

I don't want to get too much in the weeds here.  But the case that immediately came to my mind when I first read this opinion was Bennis -- a Supreme Court opinion that Judge Kozinski's opinion doesn't (I think) mention at all.  That's no only because that prior opinion squarely involved the analogous seizure of an automobile for (relatively) minor conduct, but also because the Supreme Court's holding in that opinion was memorably harsh.

The state in Bennis passed a statute that allowed the state to seize a vehicle -- forever -- if that car was used to pick up a prostitute.  Sure enough, a husband did just that, the state followed up on its statute and seized the vehicle forever, and the innocent wife, who co-owned the vehicle, claimed that seizure was impermissible.  Surely she hadn't done anything wrong, since she definitely didn't encourage her husband to pick up prostitutes in the car, and so even if you could punish her husband, she said, she thought that it was definitely impermissible to forfeit at least her half of car to the state.  Which was what the statute indeed did.

Pretty good argument, right?

No dice.  The Supreme Court held that it was perfectly okay to make the wife lose her vehicle forever.  The Constitution was completely okay with that.

Well, if a totally innocent person can lose her car forever if it's used for misconduct, I'd think that a partially culpable person (who deliberately loaned her car to an unlicensed driver) could lose her car for a lesser period of time (30 days), right?

Not according to today's opinion.  Which just seems odd to me.

Now, were he to mention it, I'm sure that Judge Kozinski would attempt to distinguish Bennis by saying that that was a case involving the Fifth Amendment, not the Fourth.  But two things would still stick out.  First, when you read Bennis, I think that every objective observer would be a thousand percent confident that a Fourth Amendment argument in that case would have fared no better -- and may even have fared worse -- than the Fifth Amendment argument that was rejected.  So it's a slender reed on which to distinguish a case if the Court itself would have definitely rejected that distinction.

Moreover, again, the rationale of Bennis just seems inconsistent with the Ninth Circuit's underlying holding.  The opinion in Bennis concluded by saying that the statute did not violate the Constitution because "the property in the automobile was transferred by virtue of that proceeding from petitioner to the State."  That underlying doctrinal rationale seems equally applicable to the 30-day possessory interest asserted in the present case; it was gone as a result of the underlying misconduct, so there's no constitutional violation.

Anyway, the long and short of all of this -- perhaps overly long, I admit -- is that I'm not sure that the Ninth Circuit's stark distinction between Fourth and Fifth Amendment claims in the present case is an obvious, or even tenable, one.  Seems to me that there's a darn good argument that if it's okay under the Fifth, it's okay under the Fourth as well.  At least in a case like this.

And that's from someone -- me -- who will freely admit that he'd be quite inclined to find that it violates the Fifth.