Appellees' motion to modify the record on appeal is granted. 1

 

No. 96-1190

 

Sharon Putman; Joann Lee; *

*

Appellants; *

* 

v. * Appeal from the United States

* District Court for the

Unknown Smith, St. Louis * Eastern District of Missouri.

County Police Officer DSN *

2116; St. Louis County; *

*

Appellees. *

 

Submitted: September 12, 1996

 Filed: October 28, 1996

 

Before LOKEN, HEANEY, and JOHN R. GIBSON, Circuit Judges.

 

HEANEY, Circuit Judge.

Sharon Putman and Joann Lee appeal from the district court's grant

of judgment as a matter of law to the appellees, a police officer, a towing

company, and St. Louis County, in this 42 U.S.C. § 1983 action. We affirm

in part and reverse in part.

I.

Considering the evidence in the light most favorable to the

appellants, the evidence established that Putman and Lee jointly owned a 1

1982 Lincoln Continental automobile. On January 5, 1990, Lee was a

passenger in the car when St. Louis County police officer Larry Smith

stopped the car for expired license plates. During a
 At the time the car was seized, the CAFA provided that the

2

seizing officer was required to report the seizure to the county

prosecutor's office within three days. Mo. Rev. Stat.

§513.607.5(2) (1986). The prosecutor, in turn, was given five days

after the receipt of notice of seizure in which to file a petition

for forfeiture. Id. The Missouri courts have held that these

forfeiture time limitations are mandatory and must be strictly

construed. See, e.g., State v. Eberenz, 805 S.W. 2d 359, 362 (Mo.

Ct. App. 1991)

2

search of the car, Officer Smith found a partially burnt, hand-rolled

marijuana cigarette. Smith seized the car pursuant to the Missouri

Criminal Activity Forfeiture Act (CAFA), Mo. Rev. Stat. §§ 513.600-513.653

(1986), and in accordance with a St. Louis County policy of "zero

tolerance" then in effect. Under the county's zero-tolerance policy, a

police officer who encountered a vehicle containing any quantity of

suspected drugs was instructed to seize the car for forfeiture and to

arrest the car's occupants. Lee was arrested and cited for violations

related to expired license plates and vehicle inspection. 

Although the CAFA contains specific provisions to facilitate either

the prompt initiation of forfeiture proceedings or the timely return of

property, as the district court characterized it, "something happened" to 2

the appellants' car. Despite the fact that the county neither filed drug

charges against Lee nor initiated forfeiture proceedings against the car,

the car remained under a police hold for more than two years. During that

time, Putman repeatedly attempted to locate the appellants' car without

success. On March 3, 1992, the prosecutor's office formally advised St.

Louis County Police of its decision to decline forfeiture of the car and

instructed the police to notify the car's owner and to arrange for the

return of the vehicle. Six months later, on September 15, 1992, the police

department sent Lee a letter advising her that she could pick up the car

at a specified towing
 In substance, the letter provided: 3

Due to a recent change in policy at the St. Louis

County Prosecuting Attorney's Office, this

Department has been directed to release the hold

and return to the owner certain properties which

had been seized pursuant to Missouri law.

The St. Louis County Prosecuting Attorney's Office

advised the St. Louis County Police Department

these seizures were both proper and legal.

However, due to the cost of litigation and change

in policy, the property will not be subject to

forfeiture action.

(Appellees' App. at 34 (emphasis added).)

3

company. When Putman called to retrieve the car from the towing company, 3

she was told that the car was not there. The following month, Lee received

a letter from the Missouri Department of Revenue informing her that the car

was in the possession of a different towing company and that title to the

car would transfer over to the towing company unless she made immediate

arrangements to pay $1,500 in towing and storage costs. Putman and Lee

subsequently learned that the storage fees actually amounted to $4,000.

On December 30, 1992, the towing company obtained title to the car.

Putman and Lee brought this action in federal district court under

42 U.S.C. § 1983 against the police officer who seized the car, the towing

company that obtained title, and St. Louis County alleging that they

deprived appellants of their property under color of law without due

process in violation of the Fourteenth Amendment. After Putman and Lee

presented their case to a jury, the court granted the appellees' motion for

judgment as a matter of law. With respect to Officer Smith, the court

determined that appellants presented no evidence from which the jury could

conclude that he violated appellants' due process rights either by stopping

the car or by the manner in which he conducted the seizure. With respect

to the county's liability, the court determined that there
 Under the Parratt/Hudson doctrine, a state actor's random and 4

unauthorized deprivation of a plaintiff's property does not result

in a violation of procedural due process rights if the state

provides an adequate post-deprivation remedy. See Hudson v.

Palmer, 468 U.S. 517, 529-37 (1984); Parratt v. Taylor, 451 U.S.

527, 535-45 (1981), overruled in part on other grounds, Daniels v.

Williams, 474 U.S. 327 (1986); see also Zinermon v. Burch, 494 U.S.

113, 128-32 (1990) (explaining that the rationale behind the

Parratt/Hudson doctrine is that states could not predict and

therefore could not be expected to safeguard against random and

unauthorized deprivations through pre-deprivation processes).

4

was insufficient evidence that the St. Louis County had a policy to deprive

appellants of their property without due process. The court also concluded

that, as a matter of law, the appellants had an adequate post-deprivation

remedy in state court to regain possession of their vehicle. Thus, the

court agreed with the county that appellants' section 1983 claim failed as

a matter of law under the Parratt/Hudson doctrine. 

4

II.

We review the granting of a motion for judgment as a matter of law

by applying the same standard as the district court: Judgment as a matter

of law is appropriate where, resolving all factual disputes in favor of the

nonmoving party, the nonmoving party presents insufficient evidence to

support a favorable jury verdict. Abbott v. City of Crocker, Mo., 30 F.3d

994, 997 (8th Cir. 1994). We will reverse the decision if reasonable

jurors might differ as to the conclusions that could be drawn from the

evidence presented to the district court. Swanson v. White Consolidated

Indus., Inc., 30 F.3d 971, 973 (8th Cir. 1994). 

We agree with the court that appellants failed to present evidence

from which a reasonable jury could conclude that either the police officer

or the towing company violated their due process rights. No party contests

the validity of the initial traffic stop or subsequent search of the car.

Appellants' primary claim against
 The CAFA, in relevant part, provides: 5

Seizure may be affected by a law enforcement

officer authorized to enforce the criminal laws of

this state . . . if the seizure is incident to a

lawful arrest, search, or inspection and the

officer has probable cause to believe the property

is subject to forfeiture and will be lost or

destroyed if not seized. Within three days of the

date of seizure, such seizure shall be reported by

said officer to the prosecuting attorney of the

county in which seizure is effected . . . .

Mo. Rev. Stat. § 513.607.5(2) (1986) (emphasis added).

5

Officer Smith is that he failed to notify the prosecutor's office directly

about the seizure. Instead, the officer followed the department's protocol

whereby the officer promptly files an oral report to a computer operator

with instructions to notify the police department's drug unit; the computer

operator generates a written report which is forwarded to the drug unit

which, in turn, notifies the prosecutor's office about the seizure. We

agree with the district court that Officer Smith did nothing

unconstitutional. Despite the fact that this reporting procedure deviates

slightly from the technical directives of the CAFA, section 1983 liability 5

must rest on something more than the mere fact that the officer promptly

reported the seizure to the proper authority through an indirect means.

With respect to the towing company, nothing in the record can establish its

liability under section 1983 for any deprivation the appellants suffered

in this situation.

In contrast, we believe that the appellants presented sufficient

evidence from which the jury could find liability on the part of St. Louis

County. Specifically, the evidence permits a finding that the deprivation

the appellants suffered was not random and unauthorized, but rather a

foreseeable consequence of the county's zero-tolerance seizure policy.

Detective Robert Kenney of the St. Louis County Drug Enforcement Bureau

testified about the county's policy of seizing all vehicles from which

police recovered any quantity of suspected drugs. He described the large

volume of
 A 1993 amendment to the CAFA suggests that the Missouri

6

legislature recognized that some type of coordination or

accountability, necessary to protect individual rights, was missing

from the system. The law now includes an annual reporting

requirement:

The prosecuting attorney . . . to whom the seizure

is reported [by law enforcement] shall report

annually . . . all seizures. Such report shall

include the date, time, and place of seizure, the

property seized, the estimated value of the

property seized, the person or persons from whom

the property was seized, the criminal charges

filed, and the disposition of the seizure,

forfeiture and criminal actions. The reports shall

be made to the director of the Missouri department

of public safety and shall be considered open

record.

Mo. Rev. Stat. § 513.607.7 (1994).

6

forfeiture cases forwarded to the prosecutor's office and estimated that

his office received as many as a thousand telephone calls each week from

property owners seeking the return of their seized property. Kenney knew

of no coordination between the police department and the prosecutor's

office to verify that seizure reports were properly forwarded to the

prosecutor's office and that forfeiture decisions were properly relayed

back to the police. Putman and Lee testified about their unsuccessful

6

efforts to locate their car and procure its return. The jury was also

presented with evidence of the county's prolonged delay in releasing the

hold on the car as well as the untimely and inaccurate correspondence to

Putman and Lee. In short, appellants presented enough evidence for the

jury to conclude that their deprivation of property was foreseeable in

light of the county's zero-tolerance policy that so overwhelmed the

county's seizure and forfeiture processes. Our determination that there

was sufficient evidence to conclude that the county's misconduct was not

random and unauthorized makes it unnecessary for us to decide whether the

state afforded the appellants an adequate post-deprivation remedy.
7

III.

In sum, we hold that the district court properly granted judgment as

a matter of law to Officer Smith and the towing company. The court erred,

however, in granting the same relief to the county. Putman and Lee present

enough evidence from which the jury could conclude that St. Louis County

deprived them of their property without due process of law in violation of

the Fourteenth Amendment. The evidence supported a finding that the acts

attributable to the county were more than random and unauthorized.

Accordingly, we affirm in part, reverse in part, and remand to the district

court with instructions to allow this action under 42 U.S.C. § 1983 to

proceed against St. Louis County.

A true copy.

Attest:

 CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.