Metropolitan News-Enterprise


Thursday, October 12, 2016


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Ninth Circuit Dismisses Action for Wrongful Towing

Judge Stephen Reinhart Dissents, Says Officer’s Unreasonableness in Refusing to Examine Proof That Parking Tickets Had Been Paid Caused Qualified Immunity to Vaporize


By a MetNews Staff Writer


A private cause of action does not exist in California based on a Penal Code section which renders it a misdemeanor for a public officer to seize property without authority, the Ninth U.S. Circuit Court of Appeals held yesterday, in a 2-1 opinion.

The unpublished majority decision, signed by Judges Ferdinand Francis Fernandez and John B. Owens, affirms the dismissal of an action by Scarlet Timphony and her son, James Timphony, over the towing of her automobile in 2014. Their causes of action against the City of Pasadena—for carjacking and violation of federal civil rights—had been dismissed earlier, and yesterday’s decision concerned the scrapping of their remaining claim against the impounding officer, Rafael Verduzco.

Fernandez and Owen agreed with District Court Judge George Wu, who ordered the dismissal, that Verduzco’s qualified immunity protected him against a claim under 42 U.S.C. §1983 for a civil rights violation and that his conduct was not so outrageous as to authorize an action for intentional infliction of emotional distress.

Dissenting, Judge Stephen Reinhardt asserted that the unreasonableness of the officer’s conduct—in refusing to look at proof that the parking tickets giving rise to the impoundment had been paid—rose to such a level of unreasonableness as to strip the officer of immunity.

Under Vehicle Code § 22651(i), a vehicle may be impounded if the owner has five or more parking tickets that have been unpaid for 21 days or longer.

Penal Code Provision

The Penal Code section in issue was §146 which provides that a “public officer…under the pretense or color of any process or other legal authority” commits a misdemeanor if he or she “without a regular process or other lawful authority” commits certain acts, including seizing “any property.”

The majority opinion said:

“Under California law, a criminal statute authorizes private civil suits only where the legislature intended to create a private right of action or where compelling reasons of public policy justify the recognition of such a right….The text and legislative history of §146 do not suggest that the legislature intended to create a private right of action. The statute simply creates criminal liability for certain forms of official misbehavior. Nor is there a compelling reason of public policy to authorize civil suits under § 146 given the remedies available under 42 U.S.C. §1983.”

Qualified Immunity

Fernandez and Owens went on to agree with Wu that qualified immunity shields Verduzco against liability under the federal civil rights statute. They wrote:

“Although towing constitutes a seizure under the Fourth Amendment, it is well established that it is reasonable if it serves the public purposes of easing traffic flow, promoting public safety and convenience, or mitigating the risk of vandalism or theft….A reasonable officer in Verduzco’s situation could believe he was acting legally in towing the car despite its driver’s protest. A reasonable officer, moreover, would not believe he was violating the Constitution in refusing to engage in on-the-spot adjudications of evidence and concluding that any dispute over the validity of the towing could be determined later by other municipal authorities.”

It was on that point that Reinhardt differed with his colleagues, declaring:

“Timphony was present when his car was being towed. He told the officer that he had paid the outstanding parking tickets that supposedly authorized the towing, and that the receipts to prove it were in the glove compartment. The officer refused to allow him to retrieve those receipts and refused to look at them before proceeding with the towing. This conduct on the part of the parking enforcement officer was objectively unreasonable. I would, therefore, reverse the District Court’s judgment that the officer is entitled to qualified immunity. At the very least, I would grant the Plaintiffs leave to amend their complaint so that they could allege facts that would make it even clearer that the officer’s decision was objectively unreasonable.”

Emotional Distress

The majority opinion also said:

“In order to state a claim for intentional infliction of emotional distress in California, a plaintiff must allege, among other things, ‘outrageous’ conduct by the defendant….The conduct at issue here does not rise to that level.”

The plaintiff’s attorney, Leonard Chaitin, said yesterday that the Timphonys were “very upset” over the impoundment of the car, owned by the mother and being permissibly driven on the day in question by the son. He said they were without use of the automobile for four or five days and “you need a car.”

Chaitin said that Scarlet Timphony was able to regain possession of her vehicle after discussing the matter with an assistant city manager, gaining access to the car in the impoundment lot, retrieving the receipts from the glove compartment, and showing them to city officials.

“I expect to petition to have the case heard en banc,” Chaitin noted.

A request for comment emailed to Assistant Pasadena City Attorney Frank Rhemrev prompted a phone call from an unidentified woman in the office who said she could not say anything without authorization.

The case—originally filed in Los Angeles Superior Court but removed by the city to U.S. District Court—is Timphony v. City of Pasadena, 15-55144. The panel opted to decide the case without oral argument.


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