Metropolitan News-Enterprise


Thursday, June 22, 2017


Page 3


Ninth Circuit Declares:

California’s Impounding Law Is Unconstitutional

Opinion by Kozinski Doesn’t Discuss Special Order No. 7


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday declared invalid a California statute requiring that police, after impounding a vehicle driven by an unlicensed driver, store that vehicle for 30 days.

Acting in an individual capacity and as a class representative, Lamya Brewster sued in the U.S. District Court for the Central District of California on Nov. 2, 2014, to challenge Vehicle Code §14602.6(a)(1) which was invoked when police declined to release her vehicle to her two days earlier. It had been seized three days before that after police made a traffic stop of Brewster’s brother-in-law, who was driving the automobile, and found that his driver’s license had been suspended.

The statute provides that “[a] vehicle so impounded shall be impounded for 30 days.”

Brewster, the registered owner, did have a valid license, and expressed a willingness, at an Oct. 31 hearing, to pay the towing and impounding fees. Nonetheless, she was denied possession of her Impala.

Judge Jesus G. Bernal on March 19, 2015, dismissed her action, with prejudice, holding that “the thirty-day impoundment period—designed to deter unlicensed drivers or drivers with a suspended license from driving—is an administrative penalty, and thus not unconstitutional under the Fourth Amendment.”

Kozinski’s Opinion

Writing for a three-judge panel, Ninth Circuit Judge Alex Kozinski said that Bernal pursued “the wrong inquiry,” explaining:

“Whether the seizure is a valid penalty or forfeiture under the Fifth and Fourteenth Amendments is an interesting question but not one that is raised in this case. Plaintiff claims only that the 30 day impound violates the Fourth Amendment.”

Kozinski said it was undisputed that police could lawfully seize and impound a vehicle under the “community caretaking exception to the Fourth Amendment” where officers are acting to protect the public from a danger. He declared, however, that “[t]he exigency that justified the seizure vanished once the vehicle arrived in impound and Brewster showed up with proof of ownership and a valid driver’s license.”

No Justification Shown

He went on to say:

“A seizure is justified under the Fourth Amendment only to the extent that the government’s justification holds force. Thereafter, the government must cease the seizure or secure a new justification. Appellees have provided no justification here.”

The holding yesterday in Brewster v. Beck, No. 15-55479, does not leave law enforcement authorities in California without authorization to impound vehicles driven by unlicensed motorists. That could be effected, Kozinski said, under Vehicle Code §22651(p), which does not mandate a detention of the vehicle for a set period of time.

Beck’s Special Order

Although the action was brought against the City of Los Angeles, the Los Angeles Police Department, and Chief of Police Charlie Beck, the opinion, by Judge Alex Kozinski, makes no reference to Beck’s “Special Order No. 7,” approved by the Police Commission on Feb. 28, 2012, effective on April 22 of that year.

The order—aimed at enabling illegal immigrants to drive automobiles without the vehicles being seized—restricts circumstances under which impounding may take place where the driver is unlicensed. It bars impounding if the vehicle is registered, the driver has some identification, and has not been convicted of driving without a license.

Los Angeles Superior Court Judge Terry Green in 2013 declared the order “void,” as being in conflict with statute, but Div. Eight of this district’s Court of Appeal issued a writ of supersedeas and, on Dec. 26, 2014, upheld the order in an opinion by Justice Madeleine Flier.

The California Supreme Court on April 1, 2015, denied review in the case and ordered that Flier’s opinion be depublished.

Under the policy, the impounding of Brewster’s Impala would have been prohibited if she had been “immediately available.” Having been telephoned, according to her complaint, she rushed to the scene of the traffic stop and found that her vehicle had already been towed, and she was advised by an officer that she could not retrieve it for 30 days.


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