Courtesy of James R. Touchstone, Esq.
In Wright v. Beck, the Ninth Circuit Court of Appeals held that a plaintiff, who continued to assert a claim of right to previously seized firearms and reasonably believed that the police department was still reviewing the matter, was entitled to notice under the Fourteenth Amendment’s Due Process Clause that police intended to seek a court order permitting destruction of the firearms.
Wayne Wright spent decades acquiring a large collection of firearms, which, he claimed, was worth over half a million dollars. The Los Angeles Police Department (“LAPD”) obtained a search warrant from the Los Angeles County Superior Court (the “Los Angeles Court”) and seized more than 400 firearms from Wright’s residence and storage unit.
In August 2006, Wright pled guilty to one count of possession of an unregistered assault weapon. The plea agreement, reduced to a court order imposing probation conditions, stated that Wright could not possess any firearms for thirty-six months. Under the terms of the agreement, the firearms would be destroyed or sold unless Wright could provide proof of ownership to the LAPD as required by its policy regarding the return of seized guns. LAPD policy provided: “The Department must accept any reasonable proof of ownership. Registration in the name of the lawful owner shall constitute proof of ownership. However, a lack of registration does not constitute a lack of proof of ownership unless registration is required by law for possession and/or ownership of the gun. Unless there is articulable probable cause to disbelieve a sworn declaration from the claimant/owner, a sales receipt, or other proof of ownership from the claimant shall constitute proof of ownership.” Departmental policy thus provided that Wright could prove he owned the firearms by either showing they were registered in his name or through a sworn declaration, sales receipt, or other proof of ownership, unless the LAPD had probable cause to disbelieve such evidence.
A few months after pleading guilty, Wright moved the Ventura County Superior Court (the “Ventura Court”) for return of his seized property. The LAPD agreed to release twenty-eight firearms registered to Wright but opposed release of the remaining firearms. The court ordered the release of Wright’s non-firearm property, but the record did not show that the Ventura Court had addressed the firearms at the time.
After completing his term of probation, Wright and his counsel Joseph Silvoso (“Silvoso”) spent the next seven years negotiating off and on with LAPD Detectives Richard Tompkins (“Tompkins”) and James Edwards (“Edwards”) and Deputy City Attorney Heather Aubry (“Aubry”) about the kinds of records that Wright would need to furnish to obtain his firearms. In May 2010, Silvoso provided the LAPD with copies of receipts for ninety-four firearms and explained the difficulty in obtaining records for the others because Wright had spent decades acquiring them. A few months later, the LAPD explained that it was “slowly” reviewing the records Wright provided. In November 2010, Silvoso followed up with Edwards and Aubry asking if they needed anything in addition to the original receipts and a sworn declaration to prove ownership of the firearms. Edwards and Aubry did not respond.
In August 2011, Wright filed another motion in the Ventura Court for return of his firearms. LAPD again opposed release of the great majority of the remaining firearms. The LAPD also moved the Ventura Court for an order to destroy the remaining firearms. In reply, Wright filed a declaration asserting he owned all but forty of the seized firearms and attached the ninety-four receipts he had previously provided to the LAPD.
At a September 2011 hearing, the LAPD stated that it had delayed reviewing Wright’s records and had not yet reviewed his receipts or his sworn declaration, explaining it needed additional time to review the records to determine whether Wright had provided reasonable proof of ownership.
In an October 2011 written order, the court ordered the LAPD to release the twenty-six firearms that the Department had agreed belonged to Wright. However, the court did not rule on the remaining firearms. Instead, the court instructed the parties to meet and confer to determine whether the ownership status of the remaining firearms could be resolved informally and, if not, to return to court.
In a conversation with Wright and Silvoso immediately after the hearing in the courthouse hallway, Aubry and Tompkins informed the pair that they would contact them if the LAPD believed they needed additional proof of ownership. In November 2011, Wright provided the original versions of the ninety-four receipts to the LAPD. The parties continued to negotiate via email into March 2012, with Tompkins assuring Wright’s counsel that the LAPD was “making progress” working with Wright’s case.
In April 2012, the officers had completed the review process and determined that Wright owned eighty of the ninety-four firearms for which Wright had provided receipts. Yet the officers did not inform Wright that the review process was completed, that the officers did not believe Wright’s sworn declaration, or that it was determined Wright did not prove he owned the remaining firearms. Wright assumed in the interim that the review process was still continuing, that the negotiating stage was ongoing, and that the Ventura Court’s September 11 order, requiring the parties to return to court if informal negotiations had failed, still controlled.
Instead, in December 2013, Edwards applied ex parte to the Los Angeles County Superior Court—to the same judge who had approved the 2004 search warrant—for an order permitting destruction of the remaining firearms. Edwards did not give Wright notice that he intended to seek such an order. Thus, Wright did not have an opportunity to contest Edwards’ application. The Los Angeles court granted Edwards’ application and issued the destruction order. In June 2014, the LAPD destroyed the remaining 300-plus firearms by smelting them.
Wright sued Aubry, Edwards, and Tompkins, LAPD Chief Charles L. Beck (“Beck”), Los Angeles City Attorney Michael N. Feuer (“Feuer”), and the City of Los Angeles (the “City”) (collectively, “Defendants”) in federal court. Wright alleged, among other claims: (1) violations of his Fourth and Fourteenth Amendment rights under 42 U.S.C. section 1983 against all defendants and sought damages against only Aubry, Edwards, and Tompkins; and (2) a Monell claim against Beck, Feuer, and the City for failure to train. Wright sued Aubry, Edwards, and Tompkins in their individual capacities and Beck and Feuer solely in their official capacities. Defendants moved to dismiss, arguing that the Ventura Court impliedly ruled in its September 2011 order that Wright had no possessory interest in the firearms. The District Court granted the motion. Wright appealed, and the Ninth Circuit Court of Appeals reversed, holding in a memorandum disposition that the District Court “grossly mischaracterized” the Ventura Court order to suggest that Wright had no possessory interest in the firearms. The Court of Appeals reasoned that the Ventura Court left “the final resolution” of those guns “for another day.”
On remand, Defendants moved for summary judgment on the merits of Wright’s Fourth and Fourteenth Amendment claims. Aubry, Tompkins, and Edwards also raised a qualified immunity defense. The District Court granted the motion, concluding the individual named Defendants, even those sued in their official capacity, were entitled to qualified immunity. The District Court held in part that Wright’s due process rights were not violated because he was not entitled to notice that the LAPD sought the disposition order from the Los Angeles Court to destroy the firearms. Wright appealed. Because Wright could not prevail against the individual defendants, the District Court reasoned that Wright could not maintain his Monell failure-to-train claim against the municipal defendants as well. Wright appealed again to the Ninth Circuit.
The Ninth Circuit Court of Appeals stated, “In determining whether an officer is entitled to qualified immunity, we employ a two-step test . . . .” Mattos v. Agarano, 661 F.3d 433, 440 (9th Cir. 2011) (en banc). (1) The first step involves determining “whether the officer violated a plaintiff’s constitutional right . . . .” Id. The second step assesses “whether the constitutional right was ‘clearly established in light of the specific context of the case’ at the time of the events in question.” Id. (quoting Robinson v. York, 566 F.3d 817, 821 (9th Cir. 2009)). The second step requires a determination of “whether [the constitutional right’s] contours were sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Id. at 442 (quotation marks omitted). The Ninth Circuit considered whether Wright’s due process rights were violated and, if so, whether the law was clearly established at the time of the violation.
The Court observed that the Fourteenth Amendment guarantees that a state cannot “deprive any person of . . . property without due process of law.” U.S. Const., Amend. XIV. A primary guarantee of due process is that, before the government permanently deprives a person of a property interest, that person will receive—at a minimum—notice. Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950).
The Ninth Circuit noted that since Mullane was issued, the Supreme Court has “adhered unwaveringly” to its pronouncements, frequently holding that inadequate attempts to provide notice violate due process. The Court stated that outright failures to even attempt to provide notice violate due process, and that even in cases after the government has lawfully seized property, reasonable notice must be provided prior to a final deprivation. “If the right to notice and a hearing is to serve its full purpose, then, it is clear that it must be granted at a time when the deprivation can still be prevented.” Fuentes, 407 U.S. at 81. Moreover, due process is not satisfied simply because judges have facilitated the deprivation. (See Id.) The Ninth Circuit noted that California courts have also upheld the rule of requiring notice, both as due process principle and as a procedural rule.
On appeal, Wright claimed that, without notice to Wright, Edwards sought an order from the Los Angeles Court granting permission to destroy Wright’s firearms. Wright alleged that Edwards sought this order while the parties were still informally resolving the ownership dispute, as encouraged by the Ventura Court. The subsequent destruction of Wright’s firearms constituted a permanent deprivation and underscores the need for notice.
Defendants did not dispute the “elementary,” “fundamental,” and “rudimentary” guarantee of the right to notice. They instead argued that the notice requirement was satisfied at the time the firearms were seized and asserted three reasons to argue that Wright was not entitled to any further notice thereafter.
Defendants first argued that findings in City of W. Covina v. Perkins, 525 U.S. 234 (1999) signified that Wright deserved no further notice after the guns were seized. The Ninth Circuit explained, however, that Perkins merely reaffirmed the longstanding view that statutes alone can provide sufficient notice of how an owner can retrieve property once it has been seized by the state. Perkins did not apply here, where no notice was provided—statutory or otherwise—that the police intended to seek a destruction order while Wright’s claim of ownership was still pending.
Defendants also argued that California Penal Code section 34000(a) required destruction of the firearms. The Ninth Circuit explained that had Wright abandoned the firearms and the requisite time had lapsed under Section 34000(a), perhaps the LAPD could have applied ex parte for a destruction order without giving notice of its intended action. But because Wright continued to assert a claim of right to the firearms and reasonably believed that the LAPD was still reviewing the documentation he provided, he was entitled to know that the LAPD intended to seek an order permitting destruction of the remaining firearms.
Defendants’ third argument was that they did not need to provide Wright notice because he already had his opportunity to pursue available remedies and present his claim of ownership. The Ninth Circuit rejected the argument, explaining that Wright’s claim of ownership was never resolved fully by the Ventura Court. At the September 2011 hearing, the Ventura Court instructed the parties to resolve Wright’s ownership claim informally; and, if those efforts failed, the parties could return to court. The Court concluded that Wright did not argue he was entitled to notice beyond what due process mandates, as Defendants asserted.
The Ninth Circuit concluded that a reasonable jury could find a due process violation under the circumstances here because Wright was entitled to notice he did not get. The Court next determined who deprived him of this right.
Although the Court of Appeals did not identify a case with the exact factual situation involved here, the Court explained that an official may have “fair notice” that conduct is unlawful, “even without a body of relevant case law,” if the violation is so “obvious” that no reasonable official would have engaged in such behavior. Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per curiam). The Court concluded that in light of the precedent that did exist at the time that Edwards filed an ex parte application for permission to destroy Wright’s firearms, his actions fit within the “obvious” situation. See Mena v. City of Simi Valley, 226 F.3d 1031, 1041 (9th Cir. 2000). The Court stated that it “appears obvious to us, even without a case addressing identical facts, that a state actor cannot unilaterally seek to destroy one’s property without first providing the individual notice of the intent to do so.”
Moreover, the Court observed that unlike the mere general right to due process or the abstract right to be free from excessive force, the right to notice is a specific, concrete guarantee that a person will be informed of the government’s intent to deprive him or her of property before doing so. The Circuit Court added that Edwards was at the time seeking ex parte permission to destroy the firearms, a “permanent kind of deprivation[,]” making the failure to provide notice even more egregious than just a temporary one. Yet despite knowing that Wright had a pending claim of ownership, Edwards applied to the Los Angeles Court, without notice to Wright, for an order to destroy his property. Thus, the Court expressed “no doubt” that Edwards had fair notice that his conduct violated Wright’s due process right to notice, and therefore he was not entitled to qualified immunity. The Court held that a reasonable jury could conclude that Detective Edwards violated Wright’s due process rights when he applied for a destruction order without giving Wright notice.
Because the Ninth Circuit reversed the District Court’s grant of summary judgment on Wright’s due process claim, the Circuit Court also reversed the District Court’s grant of summary judgment on Wright’s failure-to-train Monell claim, which the District Court characterized as derivative of his due process and Fourth Amendment claims. The Ninth Circuit remanded for further proceedings consistent with its opinion.
In a separate memorandum disposition, the Ninth Circuit affirmed the District Court’s grant of summary judgment on a defense of qualified immunity on Wright’s Fourth Amendment claim.
HOW THIS AFFECTS YOUR AGENCY
The Ninth Circuit in this opinion listed a “wealth of precedent” clarifying the fundamental nature of the right to notice under the Due Process Clause. Though the process occurred over many years, the Court emphasized that the plaintiff never abandoned his property interests and underlining his right to notice.
Agencies may consider that the Ninth Circuit reversed the grant of qualified immunity for City Attorney Feuer and LAPD Chief Officer Beck because Wright sued those officials only in their official capacities, and qualified immunity is “available only to government officials sued in their individual capacities” and is “not available to those sued only in their official capacities.” Cmty. House, Inc. v. City of Boise, Idaho, 623 F.3d 945, 965 (9th Cir. 2010).
Bottom line, due process, particularly for destruction of property, requires reasonable notice to the person asserting an ownership interest, an opportunity to be heard, or otherwise seek court intervention prior to the destruction. It is better to err on the side of caution on these types of matters. Once the property has been destroyed, the remedy is monetary compensation to the owner, plus an award of attorney’s fees if his or her claims are successful.
As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446–1400 or via email at firstname.lastname@example.org.
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 2020 U.S. App. LEXIS 37463 (9th Cir. Dec. 1, 2020).
 Manual of the LAPD, Vol. IV, at Section 560.40 (Currently available at https://www.lapdonline.org/lapd_manual/volume_4. htm#560.40).
 Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658 (1978).
 Wright v. Beck, 723 Fed. App’x 391, 392 (9th Cir. Dec. 20, 2017).
 See also Tulsa Pro. Collection Servs. v. Pope, 485 U.S. 478 (1988); Dusenbery v. United States, 534 U.S. 161, 167 (2002); United States v. James Daniel Good Real Prop., 510 U.S. 43, 48 (1993).
 Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 797 (1983) (citing cases).
 See Sniadick v. Family Finance Corp., 395 U.S. 337, 342 (1969).
 See City of W. Covina v. Perkins, 525 U.S. 234, 240-241 (1999).
 Menefee & Son v. Dep’t of Food & Agric., 199 Cal. App. 3d 774, 245 Cal. Rptr. 166, 170 (3rd Dist. 1988) (“[A]t a minimum, due process requires notice and an opportunity for a hearing.”); Conservatorship of Moore, 185 Cal. App. 3d 718, 229 Cal. Rptr. 875, 879 (4th Dist. 1986) (“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action . . . .”) (quoting Mullane, 339 U.S. at 314).
 Mullane, 339 U.S. at 314.
 Goldberg v. Kelly, 397 U.S. 254, 267 (1970).