the morning honors may please the court timothy codes on behalf of the city of santa rosa defendants we've had the benefit of an opening brief reply there's been a lot of briefing on this case at the also i'd like to start with longer valid that was enough to take him out of the statute we have considerable argument in our papers as to why we think is a matter of statutory construction that is in the way the problem that was being addressed by the legislature in six zero two point six as well as companion statute was unlicensed drivers in california but it doesn't say license by including a foreign jurisdiction well but even if you look at vehicle code section three chan which is court kind of got this from it talks about vehicle which is currently license and i think the is in the vehicle code in three ten is what makes a difference because that tells you you need a current valid license at least some where and i think california a vehicle that's currently license or an individual who has care to have a license for a vehicle which is you can apply the is in the statute it talks about it being current and that's section three ten but is there a difference between the vehicle being currently license and the driver being currently lot of this is license to do is license to drive the vehicle in question it is licensed to drive it pertains time start now the point is under three ten and i think we make the point in our brief affair fairly clear that when you're talking about a current license you are you is licensed to drive the vehicle in question that's how three ten reads that's why it talks about current licensing and it would make very little sense for the legislature to say was launched had a license any time ok to drive that's simply not what this legislation was was pertaining to so i think it's just wrong that mr rule as does fall within fourteen six o two point six say mindful that doesn't get me over the next hurdle right away which is the brewster case and i think we do have some factual distinctions here to be with respect is as opposed to the point if in the brewster case in the brewster case of course the person who is not license was not the owner of the vehicle here mr roux is is the owner he was on license repeatedly on license i would say he is exactly the person to whom this kind of provision is directed counseling even if we agree with you regarding the nissho detention how does that help you with the extended detention because i think it provides the justification for the extended detention i think in our we talk about that we depart from judge henderson in terms of his not taking into account what we consider the legislative findings about the dangers for unlicensed drivers i think it's different here because  nature of mr lewis is violations this is someone who is repeatedly driving without a license in fact the officer in exercising his discretion here made that a major point it was because he had been repeatedly cited for driving without a license so i think he tragically it is we decide on what the police officer finds is to the extent you can keep the car away from the people while that's his that was his his ground for for sighting him and  impounding under this statute it then eventually goes to the administrative hearing where because mr lewis is repeatedly not licensed it is held for the entire thirty day supply understand if the person doesn't have a driver's license you have to get them off the street but that's a little different from imposing a thirty day restriction it seems to me that there may be reasons in many cases they can do in less than twenty four hours what's the justification of thirty days in every single case well i think that the evidence here is that in some cases they don't hold for thirty days under the under the power of the policy of the of the city i mean i think that was what the evidence evidence was but that he was held at for thirty days they can hold it for thirty day can hold it under here is community care taking that as part of the state stipulate facts talking about justification for the ongoing seizure the officer puts it in the ballpark by impounding under this statute he excised that scratch from writing it down because the repeated violations when mr ruse comes in it's held for thirty days again because he is a repeated violator i think that's slightly different than in brewster the last point i wish to make is on the fifty two point one claim this court's case law has changed substantially it is adopted the cornell  decision in the resources county of sacramento i believe that's actually beneficial for defendant here because it incorporates the intent requirement i think it's difficult to say there's an intent to violate rights in the sense that is talked about in recent court now when you have a vehicle seized pursuant to what was then viewed as a valid california statute council is it your position the and that the thirty day continued detention is made on a case by case basis i think was here i mean i can only deal with the facts i have here i take the court's point as a matter of policy because we're talking about the policy of the city as a matter of theory policy were the decisions to retain the vehicles made on a case by case basis evidence is that the city policy they did vary the detentions but where in the record can we look i will look at their can i finish my question i'm sorry we're in the record may we look to to confirm that these decisions were made on a case by case basis i will look again your honor so i think this was part of what judge henderson talked about also in terms of the lack of inappropriateness of class certification in portions of that where he talks about that that the city does hold for different  so i want to make sure that the court understands that we are actually taking on in our in our statement of issues and brief the issue that there was no fourth amendment violation in this situation for a couple of different reasons and the primary reason is something that is consistent with the brewster case because i would be remiss if i didn't deal with the elephant in the room that is brewster's decision that an extended detention can implicate the fourth amendment and to be honest your honour's we have no qualms with the general statements of the law that it contained in the brewster case most specifically judge kozinski in that case said that a fourth amendment seizure must  comport at all times with the government's justification for the seizure i mean that's just basic fourth amendment law you cannot the government cannot intrude on somebody its property interests more than necessary to satisfy the reason for the government's intrusion so in this case we have a very we have a very interesting situation because we have two different types of law coming together at the same time i would submit that for purposes of the application of fourteenth six o two point six with just the thirty day impound section the community care taking doctrine is irrelevant the purpose of the statute is not to provide safety on the scene at the time the purpose of the statute in the infinite wisdom of the california legislature is to deter unlawful driving in fact california has set out a comprehensive statutory scheme that includes not only these temporary forfeitures also permanent forfeitures based on serious of decisions of violations of part of public safety and so at the time yes of course the seizures in both of these instances complied with the community caretaking doctrine initially initially but that's irrelevant because of the statute that the officers used to impound the statute was not to protect the scene the statute impound them pursuant to the legislative scheme that is to protect against unlawful driving and of the things that it causes and the legislature not only made specific findings in the statutory situation it does it demonstrates that because the purpose is deterrence we don't need to have every single person reviewed on a case by case basis and other words the court should and i invite the court to look at the statutory scheme because that's what local law enforcement officers are bound to apply so is it your view that class action certification was appropriate no you don't have to look at each individual that's the prototype of a class action but if we're looking at a facial challenge your facial a challenging the state law not a county policy we're facially challenging whether the california government has set forth an appropriate procedure to deprive people for thirty days it's a temporary forfeiture there's no question about it how they set and nothing justifications under the code to allow law enforcement officers appropriate guidance to know when it is how the city and the county have been terminated and applied that long and i would submit that if the court the lower court did say that your interpretation of the statute is wrong i don't think it applies to people who have expired for an driver's licenses however as this court knows the u s supreme court came out with the hind versus north carolina decision that said rizal mistakes of law do not equate to a fourth amendment violation so we have a this case was brought on the assumption note the allegation that law enforcement agencies state are misapplying the thirty day impound statute to people with expired foreign driver's licenses there are many agencies who did and was only for the initial detention but the continued detention it has little to do with the license in effect because someone else could drive the car the person could have gotten the license renewed in that time so the touchstone of the fourth amendment is reasonable news and that's why i'm having a difficult time accepting your argument that because the legislature has made the it's done this study and has in these legislative findings that that but the per se makes every prolonged detention reasonable well keep in mind i think we have to look at the entire legislative scheme so it doesn't say in every case the shelter if you would if you would use your discretion and invoking the thirty day impound hold all vehicles for thirty days it doesn't say that it has a list of exceptions to return it one of those exceptions is the mitigating circumstances exception and the california courts have interpreted that to say if the person is not culpable in other words if the purpose of the statute is not being met by seizing the vehicle for the thirty days under these circumstances then our statutory scheme isn't working it doesn't serve to deter any conduct you must release this vehicle to the person early because i have some questions by me i know your time is running out and that has to do with brewster judge hilton henderson rejected all of your arguments in a very opinion that was well reasoned and thorough what do we do with that i haven't had this come up before in the brief time i've been on this court though your honor i haven't had it in my my much shorter time being an attorney and we have a three judge panel publish your case saying that the opinion of judge henderson was thorough and well reasoned and  the issue that brewster decided is that you can have a fourth amendment violation for a continued detention if the government's reason for holding reason for detaining the property has ceased to exist and that is the issue that is one of the issues that judge henderson decided but remember brewster it was in a procedural posture of a motion to dismiss where it final judgment so we have an inordinate amount of information including information that the brewster court did not have which was that the court said the city did not provide a justification for the thirty day impound once community caretaking was done because of pardon me the it's a reasonable seizure how do we know that we do the balancing test under what exception to the warrant requirement that the basic fundamental premise is that it needs to be a reasonable future so the reasonable what exception as a matter of law justifies the continued detention of these vehicles the warrant exception rules do not apply in this non criminal context the rules that apply are those of civil for the civil forfeiture rules say that and i'll cite to bennett's versus michigan the civil forfeiture rules say that we don't have to have a warrant exception we have to have a public policy that says i want to deter crime we seize the property and if you can and if the statutory framework protects the person's constitutional rights then the government has the right because it's reasonable and why  that case this way now that never got to that point and here's why the court said that the city of los angeles didn't proffer a reason a justification for the thirty day hold our justification is that the pursuant to the state of california findings the thirty day impound statute saves lives it has been demonstrated in the studies by the d m v and the national highway traffic safety administration that people who've had their vehicles impounded for thirty days cause twenty five percent fewer vehicle accidents and if they had their vehicles impounded two times or more the cars thirty eight percent fewer accidents which means that the government morning don't cook for plaintiffs i think the point that ms hecht just raise makes the point even clear on why judge henderson error and not finding commonality the justification for the thirty day impound is a class based justification it's not an individual determination the city may as to be a vehicle it's the fact that the driver of the vehicle met the city or the county's requirement for being an unlicensed driver number one and and and number two they met the definition of unlicensed driver within the meaning of how the city interpreted fourteen six o two point six and number three fourteen six o two point six requires a three day impound therefore the car gets impounded for thirty days that's why the ruling by judge he case determination errored the city is not making the city and the county do not make a case by case determination here they are applying a policy across the board to those drivers of vehicles that meet the city's definition of unlicensed driver based on how they interpret it fourteen six to fourteen six zero two point six so i have to use a series of cases to strip search cases fourth amendment claims those cases get decided based on whether the class justification for searching to prisoners is justified or not and that generally determines the outcome in the cases some cases you can do a class based justification for searching of prisoners and other cases you cannot we have the same common issue here it's a class based justification it was not individuals determination and because it's a class based justification for the three day impound it's appropriate to find a common issue that predominates i thought that you had framed your challenge below really as an as applied challenge as opposed to a facial challenge to the validity warrant that we were not attacking the face and the face of the statute per se we are attacking is how the city and county were applying it in their application it was pretty straightforward they added one to tw one of which is they did not consider an issue of a foreign license a driver's license within the meaning and the second twist they added to it is they would not apply the point six impound unless there was a prior conviction of driving without a license so that's essentially the ad as applied challenge but again they applied those criteria as across the board to all drivers but they're saying that they don't necessarily keep the car for the whole thirty days and if someone comes in and makes a compelling case for why the deterrent purposes of the statue wouldn't be mad on those individual facts that they then release it early so why are you resisting the i'm trying to just right point that judge henderson noted and finding no commonality the question of how long car was actually hell is only a question of damages you can still certify the class you can even still certify damages class because you can determine with mathematical precision how long each vehicle was actually held well i'm just trying to figure out where you are fighting where you're fighting them and where you're not are you saying that after the original justification for the seizure off the street is out of the way the community care taking function all that has been disposed of and so now the the city or the county is just holding on to the car is your position they can't hold it even a single day just period likely the entire basis for the statute is invalid under the fourth amendment or are you saying that like let's say in a case where there's just act as severe aggravated facts the person you know a repeat offender and that kind of thing are there circumstances where that the holding it for thirty days would be justified in your view or just never that's what i guess i'm trying to figure out the justification they've asserted for the thirty day impound would not apply to any vehicle the owner of any of the aecl that is impound it for thirty days first of all that's the first point because because their justification of deterrence slash punishment right is easily or a warrantless seizure yes it is invalid but why is that like the bend of civil forfeiture glad you brought that up the significant thing about venice vs michigan is there was a judicial review process as to whether or not to forfeit the woman's vehicle it was not the policeman say so as to whether or not there should be a forfeiture it was based upon a judicial review process she got notice as to what was the basis for what was a civil forfeiture which according to justice thomas concurrence in a five to four decision you know there is assisting between civil forfeiture and criminal forfeiture and because it's a civil it's go ok as against the excessive fine challenge but significantly there was a judicial review process the thirty day m pounds that occurred here there's no judicial review ever review board can't you get into court some and some fact you can't there is a process later i mean there is no kind of affective judicial review when the officer makes a decision or in this in these cases when the police agency makes a decision we're going to a three day impound that's the policem decision there's no effect or did you get what you want why isn't that a due process concern rather than a fourth amendment concern it is a due process concern we did raise it and a court below course we did not raise it on this appeal but it is a why is it a fourth all that's before us is the fourth amendment and that's why i'm asking why isn't that rather than being a fourth and on a concern why isn't it in the due process box because that's what i would where you were just describing sounds to me like a due process problem the judicial review mechanism on the back end of the seizure is n robust enough to satisfy due process i'm so i say it's in both boxes however of course i did not raise plaintiffs did not raise the due process issue before this court that said in response to their argument that the statute authorizes this thirty day impound it's justified because of all the legislative findings that counsel refers to then i think it's appropriate to go back and look at will wait a minute where's the additional review and any of that there is not obviously then it's appropriate to look at the due process problem and responding to their argument about justification based upon the statute based upon an issue that was never raised in the district court i mean you can make this argument that's different from saying that you can raise it as an issue that we have to decide the short answer to your question is a trained is no i cannot ordinarily however just to raised it in the district court but it was not a subject of appeal that's correct so but if there's going to be given any credence to this argument of well the statute put let's put aside let's say that there was an extremely robust judicial review process on the back end that allows you to get into court within a matter of forty eight hours putting out ok let's just say we had a certain are you nonetheless saying that this  deterrent rationale that the city and i guess the county are asserting is just not valid like you know it's not ok to take someone's car away for thirty days nor a deter them from driving without a license i think it's within the police power of the legislature to pass a law that says for certain type of unlicensed driving we're going to impose a punishment ok ok call it the charan's call it punishment that is that had that that's the police power and they have it and they can do it however it's not the policeman's call to impose that punishment or deterrence that's going to be made by a court that's the way it's done in this country that's the way it's supposed to have been done ever since about twelve fifteen when he put the swords to the king's neck  it's the police man's job to enforce the law is the court's job to determine whether or not there is a violation of law that requires punishment and the problem with this rationale they use to justify thirty m pounds it's all based upon the decision of the santa rosa police department decision of the sonoma county sheriff's department to punish deter whatever you want to call it the ok reiver smith but then that's what i guess i'm confused about your position on with respect to class sir because you're not saying that this seizure from a force the fourth amendment standpoint is always going to be involved in every case i hear you saying that there will be plenty of cases where the app they can hold on to the car apply fourteen six zero two point six which is you meet your criteria boom you know thirty am pound here that is going to be a fourth amendment violation in every case it's a class based justification based on the turn and i get i can sense another question coming yes but already i was going to ask you were in the record we may look to confirm that the policy in every single case imposes a thirty day  detention of the car well it's in both the written policy of both the sonoma county sheriff's department and santa rosa i think it's section five permissive as to whether or not you do a point six m lb you could do a what we call catch and release two to six five one your pick even though the guy qualifies under point six you get to choose still but once you do the point six it's mandatory thirty day class action treatment may not be the appropriate way to determine the enforcement of that i would disagree for this reason for the owners we're talking about vehicle owners were all talking about people who only only possible exception that would apply under the statute would be the mitigating circumstances exception you come in and you plead your case of hardship and you know if you catch the cop on a good day maybe you get your car back and maybe not that's uniquely individual that's uniquely individual that i'm just saying that that's true however that is not the basis for their decision impound there if you meet all the criteria boom your car is hill mitigating circumstances are not a factor in any of these cases where they find that the person meets the criteria of the statute based on how these agencies interpret and imply the statute and you saw in the case where mr cent of always trying to get the car back and they had the hearing some stuff well wait a minute he's an unlicensed driver never been licensed as far as we're concerned he needs to criteria the statute he doesn't get his car back so it's your it's your position that the city and county have never released a vehicle in fewer than thirty days well one trying to say is that you meet the criteria of being on a licensed driver never been licensed you have a prior conviction it's a thirty day impound end of story the only exception is it w come in and now show that you're a licensed driver than to go to that statutory provision that says drivers now license then you have to release the car the problem i have with this particular issue is there is nothing in the record one way or the or the other about whether or not the county and the sea the invariably keep the cars and don't release any sun i would be i difficult i would say that the appropriate response is to vacate the ruling because there's a rationale for finding no commonality this this requirement you have to make an interview individualized determination i submit that was a legal error because there is no individual is determination made by the agencies when they decide the impound i would say vacate the ruling denying class or vacation in remeron for reconsideration in light of brewster and in light of additional facts as your honour's just laid out that may be brought out to show whether or not they really do any individual you terminations everything we see in this case they don't i know i'm thirty five seconds over my time just briefly and put it to point one i agree with mr cote yeah the the law has changed much to the better for the plaintiffs in this case judge henderson dismissed a fifty two point one because he thought there had to be a requirement of you know separate threats intimidation  ruling on the dismissal of fifty two point one used to be vacated and remained to the trial court to revaluate in light of the reste decision by this court and the rodriguez decision all right thank you thanks for this  cut you have some time remaining we'll give you one minute for rebutt on that second he thought there were circumstances individual circumstances in which community care taking might be valid post initial seizure depending upon what the person's driving record was at the time and he even talked to the city attorney i think it's in the transcript of the hearing re talked about how you can reconstruct in some cases that they're not being seized just because of the license but because of other factors and that's why judge henderson thought it was too individual eyes for a class certification so that's why i think the state the represents an ideal i think plaintiffs put it there also it's a rather unique circumstances this case we have liability determined as to individual plaintiffs and then backed into the class action  that's another reason for the absence in the record of such evidence for the bank claim do you agree with the polls in counsel that the change in law is beneficial no i don't think spent official to the point at all i think the rescale is kind of clear in terms of you have to show some sort of malicious intent there was excessive force that they thought a jury could go back and find that it was deliberately excessive here this is a valid california statute viewed as complying with the constitution that's not exactly qualified immunity but when you talk about intent that makes a difference for fifty two point one i just don't think they can show intent on every thank you count i thank you to all counsel for your arguments in this case the case just argued if the metaphor a decision by the court the next came funk our argument united states versus politics in advance by renaming the defendant