Andrew Grimm parked his car on a street in Portland, used a mobile app to pay for a little over an hour of parking, but then left the car there for nearly a week. Predictably, during that week-long period, a slew of parking tickets were issued to the vehicle, all of which piled up under the vehicle's windshield wiper, until eventually the City towed the car. It cost Grimm $500+ to get the vehicle back, so Grimm sued, claiming that the City's seizure of his vehicle failed to comply with procedural due process.
The Ninth Circuit holds that putting numerous tickets on the vehicle, plus a red slip placed under the windshield wiper two days before the vehicle was towed that expressly said that the vehicle would be towed if it wasn't moved, complied with the requirements of procedural due process. You can likely understand why a court might well come to that conclusion, as the district court did when it granted the City's motion for summary judgment and as the Ninth Circuit did when it affirmed that result.
So reasonable minds might well agree on that outcome.
The rub, though, is the Supreme Court's decision in Jones v. Flowers. That case holds that even when the government has attempted to provide constitutionally adequate notice (e.g., there, by sending a certified letter), if the government nonetheless knows that its normally-effective notice did not, in fact, reach the recipient, then due process might well require additional, more extensive efforts at notice before the government may seize the individual's property.
In my view, that's Grimm's best argument. Yes, normally, putting a ticket on an automobile would count as adequate notice. But the tickets on the vehicle piled up for a full week, apparently untouched. That, he says, should have informed the City that he probably didn't receive notice of the tickets, so additional efforts at notice were required under Jones before his property was seized.
Judge Thomas responds to that argument on the next-to-last page of her opinion. She says that even though the tickets were piling up under the windshield wiper, "[v]iewing the evidence in the light most favorable to
Grimm, we cannot draw a reasonable inference that the City ever became aware that its attempt to notify him of the
impending tow had failed."
Respectfully, I very much disagree.
A reasonable person could easily conclude that it's extremely likely that Grimm never received actual notice that his car was about to be towed; i.e., that he never saw the tickets that were piling up on his vehicle. Indeed, I'm precisely such a reasonable person, and that's definitely my conclusion. Usually, one removes a parking ticket once one receives it. Moreover, almost always, once tickets start piling up on your vehicle, you move the thing. And definitely, almost without exception, once you see a big red sticker under your windshield wiper that says your car will be towed, you drive it away, lest it in fact be towed.
This is my experience. This is pretty much everyone's experience, in my view. Which is why a reasonable jury on these facts would almost certainly conclude that Grimm did not, in fact, receive actual notice of these tickets before his car was towed. Something that the City, which is staffed by a legion of reasonable people, would know as well.
Is is possible that Grimm saw the tickets, read them, put them back, and simply figured "Ah, heck, I'm sure this will turn out just fine for me?" Sure. It's possible. Just like it was possible that, in Jones, the recipient of the letter knew his house was about to be seized but simply neglected to respond. But the fact something is possible doesn't mean that it's likely, and here, a reasonable person would (and surely could) nonetheless conclude that it's far more likely that Grimm did not, in fact, receive actual notice of the tickets and impending tow.
I'll prove it to you. You're presumably a reasonable person, right? I've hooked up Grimm to a foolproof polygraph machine and asked him whether he ever saw the tickets on his vehicle before it was towed, and he gave an accurate answer confirmed by that machine. I'll also give you $100,000 if you correctly guess which way Grimm answered. Which way will you bet? Do you think he got actual notice or not?
(To be clear: This is a hypothetical. I have no such machine, and will never actually give you money.)
I'd predict that 99 out of 100 of you would bet, as I would, that Grimm never saw the tickets, and never knew his vehicle was going to be towed. Maybe he was out of town. Maybe he was on a bender. Maybe he just forgot. But I bet he never saw the tickets, and think that a reasonable jury could definitely agree with me on this one.
So "[v]iewing the evidence in the light most favorable to Grimm," a reasonable jury could indeed draw a reasonable inference that the City, like the rest of us, had reason to know that its attempt to notify him of the impending seizure of his property did indeed fail. Just as in Jones.
Which in turn means that you've got to reach the relevant prong in Jones, which is whether or not there were reasonable alternative means of providing additional pre-deprivation notice to Grimm, beyond the normally sufficient notice provided by the ticket, before the vehicle was towed. Notwithstanding the final footnote of Judge Thomas' opinion, which asserts that "[b]ecause the City did not have actual knowledge that its attempt to
provide notice had failed, we do not reach the question whether any
additional forms of notice would have been practicable under the
circumstances."
I think you have to reach that issue.
Nor is Ninth Circuit precedent to the contrary. It's true that at least one prior case, Clement, said at one point that placing a ticket on a vehicle in some circumstance "can also serve as notice" that the vehicle might be towed. But while it "can" serve as such notice, in can also not serve as such notice, as when (as here) the tickets are simply piling up untouched. (You can think of additional hypotheticals as well; for example, a ticket placed on a vehicle in, say, an evacuated Chernobyl.) Moreover, the Clement case involved a vehicle towed after a single ticket was placed on the vehicle, and the Ninth Circuit held that the ticket did not provide constitutionally adequate notice of the impending tow. It's hard to argue that that prior opinion is somehow inconsistent with a holding that you gotta do more than just pile tickets on a vehicle before you tow it, no matter how easy or feasible it would be to provide additional notice as well. Especially since Clement itself suggested additional ways that it thought would be manifestly reasonable to provide additional notice in that particular case beyond merely sticking a ticket on the car's windshield; i.e., it's suggestion that "the officer might have written a ticket and left it at the front desk of the hotel, with a verbal warning that the car had to be moved or registered."
(Plus, if you really wanted to be consistent with Clement, you'd probably want to at least mention the numerous statements therein that towing someone's vehicle is quite a serious deprivation of property, as opposed to today's statements that the deprivation here was not nearly as significant as the deprivation in Jones. The latter statement is true, but the former are also true, and quite worthy of consideration and mention.)
The long and short of this is that I think the Ninth Circuit (and the district court) did, in fact, have to consider whether alternative means of providing notice were reasonable here. A test that is not only required by Jones, but is eminently reasonable as well. Imagine, for example, that there was a button on the vehicle -- sort of like OnStar, but for towing -- that the police officer writing the ticket could push to let the owner know that his vehicle was illegally parked and would be towed if unmoved. Surely due process would require that the officer push the button before ordering a tow, right? At least when, as here (and as in Clement), the vehicle's parked in a legal space, not in traffic, not blocking a fire hydrant, etc.
Now, maybe the police officer here didn't have the phone number, or the email address, that Grimm used to initially pay for parking with the mobile app. But the City surely had the registered address for the vehicle owner, as well as the lienholder (who definitely cares if the vehicle is towed). It might have had additional ways of contacting him as well. That's something that might require a remand. But, if so, great. Remand away.
But, to me, it's just not right to say that the City had no reason to know that Grimm never saw the tickets. A reasonable jury could well conclude to the contrary; accordingly, entry of summary judgment on the present record would be inappropriate. You have to investigate the potential alternative means of notice and whether they're reasonable.
In my view, anyway.
