### 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 P utman and Joann Lee appeal from the district court's gran t of judgment as a matter of law to the appellees, a police officer, a towin g 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 th e appellants , the evidence established that Putman and Lee jointly owned a 1 1982 Linc oln Continental automobile. On January 5, 1990, Lee was a passenger in the car when St. Louis County police officer Larry Smit h stopped the car for expired license plates. During a

### At the time the car was seized, the CAFA provided that th e 2 

### seizing officer was required to report the seizure to the count y pr osecutor's office within three days. Mo. Rev. Stat

. §513.607.5(2) (1986). The prosecutor, in turn, was given fi ve days after the receipt of notice of seizure in which to file a petition fo r forfeiture. Id. The Missouri courts have held that thes e fo rfeiture time limitations are mandatory and must be strictl y 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-rolle d marijuana cigarette. Smith seized the car pursuant to the Missour i Criminal Activity Forfeiture Act (CAFA), Mo. Rev . Stat. §§ 513.600-513.653 (1986), and in accordance with a St. Louis County policy of "zer o tol erance" then in effect. Under the county's zero-tolerance policy, a police officer who encountered a vehicle containing any quantity o f suspected drugs was instructed to seize the car for forfeiture and t o
arres t the car's occupants. Lee was arrested and cited for violation s 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 o f property, as the district court cha racterized it, "something happened" to

2 the appellants' car. Despite the fact that the county neither filed drug charges against Lee n or initiated forfeiture proceedings against the car, the car remained under a police hold for more th an two years. During that time, Putman repeatedly attempted to locate the appellants' car withou t
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 th e return of the vehicle. Six months later, on September 15, 1992, the polic e 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. Loui s County Prosecuting Attorney's Office, thi s Depa rtment has been directed to release the hol d and return to the owner certain properties whic h had been seized pursuant to Missouri law. The St. Louis County Prosecuting Attorney's Office advised the St. Louis County Police Departmen t these seizures were both proper and legal

. Howeve r, due to the cost of litigation and chang e in policy, the property will not be subject t o forfeiture action

. (Appellees' App. at 34 (emphasis added).)
3 company. When Putman called to ret rieve the car from the towing company,

3 she was told that the car was not there. The following month, Lee receive d
a letter from the Missouri Department of Revenue informing her that the ca r 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 immediat e arrangeme nts to pay $1,500 in towing and storage costs. Putman and Le e subseq uently learned that the storage fees actually amounted to $4,000

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

Putman a nd Lee brought this action in federal district court unde r 42 U.S.C. § 1983 against the police officer who seized the car, the towing comp any that obtained title, and St. Louis County alleging that the y depr ived appellants of their property under color of law without du e process in violation of the Fourteenth Amendment. After Putman and Le e presented their case to a jury, the court granted the appellees' motion fo r judgment as a matter of law. With respect to Officer Smith, the cour t determined that appellants presented no evidence from which the jury could conclude that he violated appellants' due process rights either by stoppin g the car or by the man ner in which he conducted the seizure. With respect to the county's liability, the court determined that there

### Under the Parratt/Hudson doctrine, a stat e 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 stat e provid es 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 , 4 94 U.S. 113, 1 28-32 (1990) (explaining that the rationale behind th e Parrat t/Hudson doctrine is that states could not predict an d theref ore could not be expected to safeguard against random an d unauthorized deprivations through pre-deprivation processes).
4 was insufficient evidence that the St. Louis County had a policy to depriv e appellants of their property without due process. The court also conclude d that, as a matter of law, the appellants had an adequate post-deprivation remedy in state court to regain possession of their vehicle. Thus, th e court agreed with the county that appellants' se ction 1983 claim failed as a matter of law under the Parratt/Hudson doctrine. 4

II.

We re view the granting of a motion for judgment as a matter of la w by applying the same standard as the district co urt: Judgment as a matter of law is appropriate where, resolving all factual disputes in favor of th e
nonm oving party, the nonmoving party presents insufficient evidence t o support a favorable jury verdict. Abbott v. Cit y of Crocker, Mo. , 30 F.3d 994 , 997 (8th Cir. 1994). We will reverse the decision if reasonabl e jurors might differ as to the conclusions that could be drawn from th e 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 evidenc e from which a reasonable jury could conclude that either the police officer
or the towing company violated their due process rights. No party contest s the validity of the i nitial traffic stop or subsequent search of the car. Appellants' primary claim against

### The CAFA, in relevant part, provides: 5 

### Seizu re may be affected by a law enforcemen t officer authorized to enforce the criminal laws of this state . . . if the seizure is incident to a lawful arrest, search, or inspection and th e officer has probable cause to believe the property is s ubject to forfeiture and will be lost o r destroyed if not seized. Within three days of the date of seizure, such seizure shall be reported by said o fficer to the prosecuting attorney of th e 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 pr osecutor's office directly about the seizure. Instead, the officer followed the department's protoco l whereby the officer promptly files an oral report to a computer operator with instructions to notify the police department's drug unit; the compute r operator generates a written report which is forwarded to the drug uni t which, in turn, notifies the prosecutor's office about the seizure. W e agree with the district court that Officer Smith did nothin g unconstitutional. Despite the fact that this re porting procedure deviates slightly from the technical directives of the CAFA, section 19 83 liability 5 must rest on something more than the mere fact that the officer promptly rep orted the seizure to the proper authority through an indirect means

. With respect to the towing company, nothing in the record can establish it s liability under section 1983 for any deprivation the appellants suffered in this situation.

In contrast, we believe that the appellants presented sufficien t evidence from which the jury could find liabilit y on the part of St. Louis County. Specifically, the evidence permits a fi nding that the deprivation the app ellants suffered was not random and unauthorized, but rather a fore seeable consequence of the county's zero-tolerance seizure policy

. Det ective Robert Kenney of the St. Louis County Drug Enforcement Burea u testified about the county's policy of seizing all vehicles from whic h police recovered any quantity of suspected drugs. He described the large volume of

### A 1993 amendment to the CAFA suggests that the Missour i 6 

### legi slature recognized that some type of coordination o r accountability, necessary to protect individual rights, was missing fromthe system. The law now includes an annual reportin g requirement: The prosecuting attorney . . . to whom the seizure is reported [by law enforcement] shall repor t annually . . . all seizures. Such report shal l includ e the date, time, and place of seizure, th e property seized, the estimated value of th e prop erty seized, the person or persons from who m the property was seized, the criminal charge s filed, and the disposition of the seizure , forfeiture and criminal action s. The reports shall be made to the director of the Missouri department of public safety and shall be considered ope n 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 seeki ng the return of their seized property. Kenney knew of no coordination between the police department and the prosecutor' s offi ce to verify that seizure reports were properly forwarded to th e prosecutor's office and that forfeiture decisions were properly relaye d back to the police. Putman and Lee testified about their unsuccessfu l 6 efforts to locate their car and procure its return. The jury was als o 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 th e jury to conclude that their deprivation of property was foreseeable i n light of the county's zero-tolerance policy that so overwhelmed th e county's seizure and forfeiture processes. Our determination that there
was sufficient evidence to conclude that the county's misconduct was not random and unauthoriz ed 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 co urt 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 presen t enough evidence from which the jury could conclude that St. Louis County deprived them of their property without due proc ess of law in violation of the Fourteenth Amendm ent. The evidence supported a finding that the acts attrib utable to the county were more than random and unauthorized

. Accordingly, we affirm in part, reverse in part, and remand to the distric t court with instructions to allow this action under 42 U.S.C. § 1983 t o proceed against St. Louis County.

A true copy.

Attest:

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