good morning made please the court counsel for the city i'd like to reserve for minutes for please this is a case ninety three case i think we should win because the undisputed evidence in the case was that the city defended here how to minas a practice that deemed all the vehicles that it seized factually abandoned without meaningful process and because our claim is due process and because that would satisfy that claim we believe we should when  the elements for a due process claim are pretty easy they're just too and most of them were not disputed by the city which is another interesting legal point for your consideration there's a debate here about between it with the district that that the district judge misapplied forty focused on right oh misapplied i thought she was focusing on in the twenty in the twenty nine chapter no i think the district court and my opponent take the position that another state statute forty five thirteen sixty one governed their actions in the district court found in the city contends that their actions and their municipal policy here complied with forty five thirteen sixty one and provided all the process that was due to my clients my argument is that the district court in the city you are erroneous in are wrong in their version and construction of forty five thirteen sixty one and in fact their policy contravened what was required by that statute and rather than following the statute they've created their own policy practice and custom of deeming the cars the seized to be factually abandoned without process  abandoned sure and i think that your role as a federal court in hearing this matter is to look at the state cases that have constructed forty five thirteen sixty one to determine as a matter of state law what the state courts have said about that statute and they are clear and they are unanimous in concluding that forty five thirty thirteen sixty one presupposes abandonment in the cases since one thousand nine hundred seven have said that abandonment means which sed which statute well you say it presupposes abandonment so that suggests there is a statute that defines or limits what abandonment is the i look at this case  the decisional law has looked at forty five thirteen sixty one and construed that it requires an abandonment and is has crafted and has has put judicial gloss on that statute and again it's done that since the domain case abandoned the there is a duty placed under the statute on the city to supply notice because they have to find out who this car owner is and to make an effort to find their identity and if there's not a claim return back then they can say also a statutory scheme that allows the police you know where were law enforcements involved right that's a different deal than abandonment yes in ninety yes there is there are two statutes that govern what happens and i  in the year two thousand and seven or state legislature took all the forfeiture statutes in all the property responsibility statutes and put it in a single provision in the revised code twenty nine eighty one and it has four categories of property that i think the legislature thought was covering the whole gamut here so you have abandoned cars and that's forty five thirteen sixty one and that's what the city says that they did here and i contend that they didn't then in twenty nine said the city contends that they were under that no no no no no no again to be as clear as i possibly can the city has not ever contended that they've acted under the forfeiture provisions were the property responsibility provisions of the revised code twenty nine is forty five thirteen sixty five they rely on the language of the awfully came and their position they rely on that and i'm sure it did and you're saying you can't just take it out of context because it's a state statute and say they say that the word in a later case said that forty five hundred sixty one says something different than abandonment but if you read that case it provides the city government has the authority to impound cars that block traffic and allows them under that statute to do inventory searches but it has nothing to do with the title transfer provisions of that statute forty five thirteen sixty one which is what we're claiming i'm not saying that there wasn't a lawful seizure in any of these cases there was part of the argument is it's broader language than that it didn't limit itself as you know if as you prefer that's there well i think i mean if you read the city's brief very carefully they say we hope we believe kavanagh stands for the proposition that the city can use its discretion to use forty five thirteen sixty one sure i don't disagree with that but that's not a fair reading of the city of the of that supreme court case  itself that case only dealt with the seizure and whether or not the seizure was a lawful one that justified an impound search of the fourth amendment you agree that they can use their discretion yes use that let's say this let me ask you this what's the consequence if it comes under abandonment if you still have a due process yes absolutely because the statute itself says the city can use forty five thirteen to five hundred sixty was ok go ahead ok i spent some time with the statute because again it's not the clear statute in the world ok in their three paragraphs the first paragraph deals with seizure and it gives the gives broad authority to local governments  seize vehicles that come into its possession when they're exercising a duty a very broad seizure authority the second paragraph deals with the notice that is the city government has to supply t to two vehicle owners that when it seizes their cars and that's where the court cases have said look because the second paragraph puts an onus on the local government to ascertain the identity of the owner to send notice to that owner and then to provide a ten day notice what follows from that is that we're talking about abandon course you talk about yes you talking about number no there aren't no i'm not i'm not in the in the version of the statute that was applicable when these events occurred in two thousand and eleven there were no subdivisions like a b and c like we find in some state statutes the statute was a method in two thousand and fifteen and now it my clients had these issues with the city government one the first paragraph deals with seizure the second deals with the notice that the city has to supply to the vehicle owners where they've seized those vehicles and the third paragraph deals with title transfer now rough now but the version of the statute now is roughly the same but the but the legislature just this year added some duties and some things that really aren't material to our dispute here ok so so you're saying all right it's did in fact come into your possession through a rough one ok so now what what do they have to do well they have to return it to the owner at the point in time that they no longer needed and if the core is factually the end up from where was that you're getting that from the difference that you yes there's a duty to return property that they no longer have a need for in another statute that's twenty nine twenty nine eighty one eighty one point one one day one right ok so you're saying then that the third paragraph of the title to the core for itself and then sell it but only after there's been a a factual abandonment which didn't occur in this case ok so that's really right and then so i guess what i'm saying is th forty five thirteen sixty one makes abandonment a fact of consequence here that fact of consequence was disputed in the city decided it on its own without any process in a circumstance in which they benefit from characteriz as abandon because they get the car they get to keep the money but my client's never had never been in their vehicles ever their cars were taken from them and if they had a point of view that they were abandoned we say there needs to be process so my client can go to a neutral fact finder present its case in argue that there was an abandonment and circumstances in which you took the car from them ok so is that just because this car wasn't abandoned that you're entitled to a hearing your point that you need to have some sort of a hearing where somebody could contest that it's abandoned or that these let's say you walk in and they say you know  twelve thousand dollars i mean that there has to be some place where you get a hearing right i'm saying i'm saying that the only way that the city gets to keep these cars is if they've been abandoned that's it i'm sorry does that mean they've been abandoned and no means intentionally relinquished which means if somebody steals your car and then the thief abandoned b n is it right no i understand those cases but let's say the car let's say your car breaks down yes it's on the road  it's the glue aspace they don't find any go in the person goes to get their car and they're told well you know it's a sum of money that's a little bit crazy are you saying that person's entitle to a hearing before yeah i think i am saying that if the government knows the identity of the owner or title owner then they can say that it's abandoned and you summary process ok to declare a b and then it's ask you to stop there you can evidence in the record before the district court that abandonment will abandonment i mean we can understand that as being definitional only driven by the statutes by the ohio revised code yes your honor i believe the definition of a didn't you might be it sounds to me like you're using it in a kind of colloquial got out got out never came back thing well what i think i'm trying to say your honor is that the city never deemed these cars abandoned  simply unclaimed and ohio revised code section forty five thirteen sixty one addresses more than just abandoned vehicles you're getting into the unclaimed aspect where there's a dispute of fa what's what is claiming you're claiming is defined within the statute as presenting proof or proof of ownership and paying the storage costs that is what the statute says is claiming the vehicle and so you know mr shaver the argument by by mr pagan on behalf of his client is that a friend marched in there at least for the mr baker marched mr henry i believe and marched in and said i'm trying to get my friend's car and they said it either they didn't tell the truth and timing was different but they said it's gone i believe mr brewer up the money but mr brewer mr henry's friend of the city at one point called the police department and indicated that he read the facts i mean you could just we can't dispute the facts here right he wasn't even given any opportunity to do any of that i don't believe that was ever developed in the record before and before the trial court there are those for the content of those conversations i'm sorry judge is the trial court granted motion that's correct right and you have another guy properties take in they say well you know deal with us and you can get it back cooperate and we'll give it back days later you've appropriated the card in most cases say that doesn't satisfy due process well judge i don't think that the city the city is following revised code forty five thirteen sixty one mr pagan talks about the city's policy t city's policy is simply enforcing revised code section forty five thirteen sixty one at statute as in force could violate due process the city of middletown is not aware of any  statute is unconstitutional we gathered some information on preparing for this argument that every circuit and country that has looked at this problem has said in fact it is a due process and that the owner can't be stripped of property without a post deprivation hearing notice and hearing well judge i think they are provided process and that is the opportunity to simply present their proof of title that hey i'm the owner of the car come in and pay the fine the towing and storage costs because the police are authorized to impound these vehicles after these people were lawfully arrested and again i think mr pagan made it clear there is no issue as to whether these people were and they were law arrested their cars were lawfully impounded under the statute they were provided notice under the statute of what was going to happen and they simply failed to act in accordance with the statute no normally that the government doesn't take your property without some kind of forfeiture action and what is supplied by that is a notice in the herring i mean that's what due process is you may have notified them that if they didn't pay up in ten days they were going to lose the car but you gave them no chance to come in and say anything i don't these provisions apply when they're truly banned or a or they are left intentionally the state cases that mr paganism is discussed in has cited in his  five thirteen sixty one applies without abandonment if the planet earth appellants theory was correct if abandonment was a necessary prerequisite to the application of the statute then there's no way that the ohio supreme court could have said that the officer from blue ash had the authority under ohio revised code forty five thirteen sixty one to use his discretion to impound the vehicle he knew the who the owner of the vehicle was they the our supreme court authorized the police department anyone in the blue  ultimately he revealed to the op the the officer that they are so he couldn't drive and that's correct that there was a firearm in the vehicle and so he was taken into custody and the officer was authorized under the statute to use his discretion to then impound the vehicle which that's fine ok is that mean they get to go ten days in and take title to it and dispose of it without having a hearing to determine whether there whether the car was actually abandoned or hi revised good forty five thirteen sixty one says yes judge if they follow that if they follow the notice requirements in the process requirements of forty five thirteen sixty one then if the vehicle is unclaimed the only process as i understand it was waiting ten days judge they they provided notice to each of you waited ten days that's the process according to the code as you have notice and i like hearing normally under due process you're saying they had notice and a process and the process was just waiting ten days that's correct judge in this case that's that's what the process is ok let say one of these cards was parked in the person's driveway right that's that's correct according to the record well according to the police report that it was taken well said it was taken from the richardson street i believe mr paganism as it was in the in the germans are ok well the standard for these motions is that you accept that yes yes all right so it's taken from the person's driveway that let's make it a hypothetical not in that you take it from somebodies driveway and as the as your as they were towing it away the person is saying to you you know you've got no right to take this car and they're saying well we think it's evidence fine so you take it away it sits there you insist that you're keeping it for whatever reason and and you know the person knows nothing about it and then you decide ok we don't need it anymore and you send them a notice a ten day notice and they walk in and they say here's my title i'd like my car back and he'd say that's fine except that you've got a three hundred dollar towing charge a twenty five dollars ministration charge and twenty five dollars for each day it's been here thank you you now oh was twelve hundred dollars or whatever and the person is like you know i don't owe you twelve hundred dollars they took my car for no reason they've never establish they had a right to do it where is their hearing the judge i think there was the fact that you describe your hypothetical different from what we're dealing where the cars were impounded pursuant to the arrests where is the chance to argue that ok fine the person was arrested and the whole time they're going you have no basis to arrest me and they go no we have a warrant here for john smith and it turns out it's the wrong john smith and it takes ten days or twelve days or twenty days to resolve this where is the person's process to make this argument i believe that the process is coming in and showing their the they own the vehicle paying the fee and then challenging but if at that point right guy and if they don't have the money because they have no source for that money or they aren't the person whose whose car it is write it that the police made a mistake they have to pay the money first and then go back and start a lawsuit to get their money well on those facts i can't say how the city would respond if we were talking about someone do the law says it's that's the point due process says it's not up to the city that you have a chance to challenge the whole premise of the seizure what is there is there you're talking about the blue case your honor no actually just general challenging because to this statute blueish obviously passed muster but the city doesn't believe the city is not aware of any this is the first time somebody gathered a few people together and said made it worth their while to file and suppose as far as the said yes yes your honor i believe that's correct so what i think we need to focus on is that the city did what the city would did what it was supposed to do under the statute if you have any cases that say this type of procedure is perfectly fine i believe that there are a few cases in other circuits judge i don't believe that i have decided right with me that have talked about a post about how no post depravation hearing once the car has been towed that  is sufficient if they pay the impound fee is this the problem presented is true in every city particularly in bigger cities right ever there's always this problem of vehicles either that they were as a result of arrest or any number of things traffic kinds of problems so so there has to be a lot of that that we're not hearing about but maybe not in ohio i don't believe there saying that due process does not require an immediate pretty deprivation hearing in other words you can take the car without first having a hearing but adequate provost deprivation procedures must be provided to those whose vehicles are impounded and then there are all these out of circuit cases saying that includes some kind of hearing that gives the owner of the car chance to contest  the basis for not just not impending the car but disposing of it and keeping the proceeds and i've given him palin the whole day and that's probably maybe that will turn out to be an issue in a post depravation hearing it could if you if you impound joe goes car and it turns out to be jane doe's car or something like that but but all of these cases indicate that there has to be some some chance to to challenge the basis for your keeping the car well judge the person the person can come in and claim their car the the appellant's who they've never claimed their vehicles according to the statute they don't challenge the arrest the impoundment the notice that they received they did they simply didn't think that we end up with the stance of whether this is reasonable if it's reasonable to give only ten days in under many of these circumstances well i think that the ohio legislature has said that it is because that's what the statute says i think the record in front of the district court reflects that the city complied with the statute the appellant's do not challenge that the city comply with the statute they simply don't think that the statute should apply or that a different law should have been followed so on this record i believe that the district court's decision was correct that they're in the district court reading not interpretation their reading of the statute of the plain language of the statute was correct and that comports with the city's reading as well i think you need to go back to the to your your appeal here but whether or not you ever challenge that you challenged the statute as unconstitutional under under no federal due process or not you asked important question about whether or not court system has found forty five hundred sixty one to be unconstitutional and i think what the how courts have done have instead of addressing the constitutionality has limited the scope of didn't in the interpretation of the statute that what they did was within the statute you're saying that you are not making a constitutional challenge to the lack of process that's  you just said let's i know that's what i've said briefly got ari i thought you were saying i thought you made a due process argument i did a due process claim against the city's practice and custom of deeming cars abandoned in all and you want us to focus on that right because the mono claim ok now what if that process is consistent with the statute is your answer it doesn't matter or is your answer oh well then i guess i was well i think i can say that in my complaint i fairly attacked the state statute i think i really to be honest with you all right so you're saying it like that you didn't answer the question it does that matter or is your answer it doesn't matter i'm attacking the policy the policy is unconstitutional whatever the statute says is irrelevant because i'm detecting the policy i think or is your answer oh well if if the  unconstitutional i say to support that it's deviating from the state statute itself in the process that that's provided but you need to focus on the practice policy and custom which is is which is taking cores deeming them to be it complying with the statute does that make it constitutional no it doesn't make it constitutional of course it doesn't make it const you haven't challenged it on that grounds i don't think that i fairly challenged it in my complaint so the consequence i assume is that we don't say anything about the statute we have to address the policy you address the policy but i think it's but i hope this response to your question i think the policy itself makes abandonment a fact of consequence that has to have procedure around the city just kind of just blew saddam got one second the city made a point that they never deemed the cars abandoned in the first instance that's untrue the record demonstrates in each case they signed an affidavit in an ex parte procedure in which they said the car was abandoned or forty five thirteen sixty one and put out facts that because it was left unclaimed on public property that's how they got the cars in the first place to the public oh is that at the point of m pounder is that it's public property the impound