IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION ONE

CITY OF SEATTLE,

Petitioner/Cross-Respondent,

v.

STEVEN GREGORY LONG,

Respondent/Cross-Petitioner.

No. 78230-4-I

ORDER DENYING MOTION FOR

RECONSIDERATION, WITHDRAWING

OPINION, AND SUBSTITUTING

OPINION

Respondent/Cross-Petitioner Steven Long filed a motion for 

reconsideration of the opinion filed on May 4, 2020. Petitioner/Cross-Respondent 

City of Seattle filed a response. The court has determined that the motion should 

be denied. However, the opinion should be withdrawn, and a substitute opinion 

filed. Now, therefore, it is hereby

ORDERED that the motion for reconsideration is denied; and it is further

ORDERED that the opinion filed on May 4, 2020, is withdrawn; and it is 

further

ORDERED that a substitute opinion shall be filed.
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CITY OF SEATTLE,

Petitioner/Cross-Respondent,

v.

STEVEN GREGORY LONG,

Respondent/Cross-Petitioner.

No. 78230-4-I

DIVISION ONE

PUBLISHED OPINION

CHUN, J. — The Washington State Constitution mandates that the 

legislature protect portions of homesteads from forced sale. Accordingly, over a 

century ago, Washington passed its first homestead law. And over 25 years ago, 

our state legislature expanded homestead protection to “personal property that 

the owner uses as a residence,” including automobiles. The law requires 

Washington courts to construe the “Homestead Act” (Act), chapter 6.13 RCW,

broadly due to “the sanctity with which the legislature has attempted to surround 

and protect homestead rights.” In re Marriage of Baker, 149 Wn. App. 208, 212, 

202 P.3d 983 (2009).

Here, the city of Seattle (City) properly concedes that Steven Long’s truck, 

which constituted his principal residence, may constitute a homestead. State 

and Seattle laws, however, allow for the forced sale of a vehicle after 

impoundment, regardless of whether such personal property constitutes a 

homestead. This case concerns whether the City violated Long’s homestead 
No. 78230-4-I/2

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rights when it towed his truck and withheld it under the threat of forced sale

unless he paid the impoundment costs or signed a payment plan. 

Long concedes that the City could have ticketed him, towed his truck, and 

required him to pay for towing and storage costs and an administrative fee 

without violating his rights. The problem, Long argues, is that the City withheld 

the truck under the threat of a forced sale if he did not sign a payment plan. We 

agree. As noted above, the law requires us to construe the Homestead Act 

broadly in favor of the homeowner, so that it may achieve its purpose of 

protecting homes. In doing so, we determine that the Act protected Long’s truck 

as a homestead and the City violated the Act by withholding the truck subject to 

auction unless he paid the impoundment costs or agreed to a payment plan. We 

therefore affirm the superior court’s decision to void the payment plan.

This case also presents the following constitutional issues: first, whether 

impounding a vehicle that serves as a home and requiring the registered owner 

to pay the associated costs constitutes excessive punishment under the federal 

constitution’s Eighth Amendment; second, whether a vehicle owner may assert

the state-created danger doctrine under the due process clause to obtain relief 

from impoundment; and third, whether Long may raise for the first time on appeal 

that towing a vehicle that serves as a home violates the private affairs guaranty

of our state constitution. 

We conclude these additional constitutional arguments fail. As for the 

Eighth Amendment, assuming without deciding that the impoundment and 

associated costs constitute penalties, they are not excessive because they 
No. 78230-4-I/3

3

directly and proportionally relate to the offense of illegal parking and are the 

exact penalties the Seattle City Council authorized. We also determine that Long 

cannot assert the state-created danger doctrine to seek relief from the 

impoundment, and he cannot raise his claim under the private affairs guaranty for 

the first time on appeal.

Our decision does not affect the City’s authority to tow and impound an 

illegally parked vehicle.1 Nor does it prohibit the City from charging a vehicle 

owner for costs associated with the towing and impounding of a vehicle. But if 

that vehicle serves as the owner’s principal residence, the City may not withhold 

the vehicle from the owner under the threat of forced sale.

We affirm in part and reverse in part.

I. BACKGROUND

King County (County) currently faces a homelessness2 crisis. In January 

2019, researchers identified 11,199 people experiencing homelessness within 

the County.

3

 Of these individuals, 2,147 lived in a vehicle.4 These figures

 

1 We note here that recently, the City passed Ordinance No. 126042 to permit the 

creation of 40 transitional encampments as an interim use where people living in their 

cars may camp indefinitely. Seattle Ordinance 126042, § 1 (Feb. 28, 2020).

2 For purposes of this opinion, we use the definition of “homeless” found in the 

Count Us In report, which, “[u]nder the Category 1 definition of homelessness in the 

HEARTH Act, includes individuals and families living in a supervised publicly or privately 

operated shelter designated to provide temporary living arrangements, or with a primary 

nighttime residence that is a public or private place not designed for or ordinarily used as 

a regular sleeping accommodation for human beings, including a car, park, abandoned 

building, bus or train station, airport, or camping ground.” APPLIED SURVEY RESEARCH &

ALL HOME, COUNT US IN 116 (2019), http://allhomekc.org/wp-content/uploads/2019/09/

KING-9.5-v2.pdf [https://perma.cc/LJL2-WNJL].

3 Homelessness in King County 2019, ALL HOME, http://allhomekc.org/wpcontent/uploads/2019/05/All-Homes-Infographic-V04.pdf [https://perma.cc/5LQX-ZCQE]. 

4 Homelessness in King County 2019, supra. 
No. 78230-4-I/4

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apparently underestimate the number of people experiencing homelessness in 

the County.5 

A. Seattle’s 72-hour Rule

The Seattle Municipal Code (SMC) generally prohibits parking a vehicle in 

the same location on City property for more than 72 hours. SMC 11.72.440(B)

(72-hour Rule). If a vehicle is parked in violation of the 72-hour Rule, it is 

“subject to impound as provided for in Chapter 11.30 SMC.” SMC 11.72.440(E).

SMC 11.30.030 incorporates applicable provisions of chapter 46.55 RCW by 

reference. Under RCW 46.55.140(1), “[a] registered tow truck operator who has 

a valid and signed impoundment authorization has a lien upon the impounded 

vehicle for services provided in the towing and storage of the vehicle.” If the 

registered owner does not claim their vehicle or contest the impoundment within 

15 days of the tow, the tow truck operator “shall conduct a sale of the vehicle at 

public auction” and use the proceeds to satisfy its lien. RCW 46.55.130(1), 

(2)(h). 

If a person seeks to redeem an impounded vehicle without contesting the 

impoundment, then they must pay the towing contractor for the removal, towing, 

and storage costs of the impoundment plus an administrative fee. 

SMC 11.30.120(B). If a person chooses to contest the impoundment, then they 

may request a hearing before the municipal court. SMC 11.30.160. If the 

municipal court determines the City properly impounded the vehicle, then the 

vehicle “shall be released only after payment to the City of any fines imposed on 

 

5 APPLIED SURVEY RESEARCH & ALL HOME, supra, at 5.
No. 78230-4-I/5

5

any underlying traffic or parking infraction and satisfaction of any other applicable 

requirements of SMC 11.30.120(B) and payment of the costs of impoundment 

and administrative fee to the towing company.” SMC 11.30.160(B). The 

municipal court also may allow the owner to make payments for the 

impoundment costs and administrative fee over time if there is extreme financial 

need and effective guarantee of payment. SMC 11.30.160(B). In that case, the 

City pays the impoundment costs to the towing company. SMC 11.30.160(B). 

B. Steven Long

Long, a 60-year-old member of the Confederated Salish and Kootenai 

Tribes of Flathead Nation, was evicted from his apartment in 2014. Since then, 

he has lived in his truck, a 2000 GMC 2500 Sierra valued at about $4,000. Long 

works as a general laborer and keeps work tools, as well as personal items, in 

his truck. Long’s work includes construction, painting, light plumbing, mechanics, 

and other labor. 

In June 2016, while driving his truck, Long heard “grinding noises” coming 

from the gears. Long pulled into a store parking lot and stayed there for a few 

weeks with the business’s permission. On July 5, 2016, Long moved his truck to 

an unused gravel lot owned by the City. Long stated that he parked at the lot 

because “it is secluded, there were other individuals living in vehicles, and the 

public did not appear to use it regularly.” The lot was also near a day center for 

the homeless.

Three months later, on October 5, 2016, police were dispatched to an 

area near the gravel lot for an unrelated complaint. After the police dealt with the 
No. 78230-4-I/6

6

complainant, another individual walked up and reported an incident involving 

Long. The officers approached Long and told him that, under city ordinance, his 

truck could not remain parked on city property for more than 72 hours. Long 

states that he told the officers the truck was inoperable and that he needed a part 

to repair it. Long also claims he told the officers that the truck was his home. 

The officers called a parking enforcement officer (PEO) to “tag” the truck. A PEO 

arrived and posted a 72-hour notice, which stated that the vehicle would be 

impounded it if he did not move it at least one city block within 72 hours, on 

Long’s truck.

Long did not move his truck because he did not believe it was running well 

enough to drive. On October 12, 2016, Lincoln Towing, which contracts with the 

City to perform impound services, towed Long’s truck while he was away 

working. Long learned of the impoundment when he returned to the lot around 

midnight. He was distressed because “it was a cold night and the beginning of 

an intense wind and rain storm.” The truck contained his “winter jacket, clothes, 

sleeping bag, blankets, tools, tool boxes, air mattress, cooking stove and 

utensils, change for the bus, rubbing alcohol for [his] joints, laptop, and all [his] 

personal items for bathing and cleaning [him]self.” After unsuccessfully trying to 

create a shelter out of a tarp, Long went to the nearby day center. Because the 

center did not have any available beds or mats, Long sat in a chair until the 

morning. Without his truck, Long began to live outside.

On October 18, 2016, Long obtained access to his truck at the Lincoln 

Towing lot and removed some personal items and bedding that he could carry. 
No. 78230-4-I/7

7

Long, however, could not afford to pay the costs to redeem his truck.

Long requested a hearing on the impoundment; the hearing occurred 

before a magistrate at Seattle Municipal Court on November 2, 2016. Long told 

the court that the truck was his home. But because Long did not argue that he 

had parked his truck legally, the magistrate determined that the ticket and 

impoundment were proper. The magistrate waived the $44 ticket, reduced the

impoundment charges from $946.61 to $547.12, and added a $10 administrative 

fee. The magistrate set up a payment plan that required Long to pay $50 per 

month. Long felt he “had no real choice but to agree” to the payment plan

because he needed his truck and did not want the City to auction it.

After the hearing, Long retrieved his truck from the impound lot. There, he 

learned that if he had not retrieved the vehicle, Lincoln Towing would have sold it 

at auction three days later—on November 5, 2016. Long drove his truck to a 

friend’s property for storage. As of March 13, 2017, Long continued to 

experience homelessness, worked in Seattle, and lived outside.

Long appealed the magistrate’s decision to a municipal court judge. On 

March 13, 2017, after discovery, Long moved for summary judgment. He argued 

that the citation and impoundment of his vehicle and the associated fines, fees, 

and penalties violated (1) the excessive fines clause of the Eighth Amendment, 

(2) the due process clause of Fourteenth Amendment to the United States

Constitution, and (3) the homestead protections under the Washington 

Constitution and the Homestead Act.
No. 78230-4-I/8

8

On May 10, 2017, the municipal court denied Long’s motion. Long filed a 

notice of RALJ appeal to King County Superior Court on June 8, 2017.6

On March 2, 2018, the superior court affirmed in part and reversed in part. 

The court affirmed that the impoundment itself did not violate either the Eighth 

Amendment or Long’s substantive due process rights. It reversed in part, 

however, because it determined that the impoundment fees were excessive in 

violation of the Eighth Amendment and that attaching Long’s truck as security for 

the impoundment fees violated the Homestead Act. The court also voided the 

payment plan and ordered the City to refund previous payments.

Both Long and the City filed motions for discretionary review, which a 

commissioner of this court granted. 

II. ANALYSIS

A trial court properly grants summary judgment in the absence of a

genuine issue of material fact. CR 56(c); Billings v. Town of Steilacoom, 2 Wn. 

App. 2d 1, 14, 408 P.3d 1123 (2017). In reviewing a summary judgment ruling, 

we “engage[] in the same inquiry as the trial court, with questions of law reviewed 

de novo and the facts and all reasonable inferences from the facts viewed in the 

light most favorable to the nonmoving party.” Billings, 2 Wn. App. 2d at 14. The 

parties do not appear to dispute any of the facts material to our analysis.

A. The Homestead Act

The City argues that while a truck may qualify for homestead protection, 

 

6 On June 28, 2017, the City orally moved for a final judgment before the 

municipal court, which the court granted.
No. 78230-4-I/9

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the Homestead Act does not apply here. Long contends that “[t]he City violated 

the Homestead Act by attaching [his] residence as security for his impound debts 

and by threatening to sell his home for those debts.” We agree in part with Long 

and conclude that the City violated the Homestead Act.

1. The Origins of Washington’s Homestead Act

States began passing homestead laws in the 19th century. Paul 

Goodman, The Emergence of Homestead Exemption in the United States: 

Accommodation and Resistance to the Market Revolution, 1840-1880, 80 J. AM.

HIST. 470, 470 (1993). Such laws aim to protect a debtor’s dwelling from 

execution and forced sale. WASH. STATE BAR ASS’N, WASHINGTON REAL 

PROPERTY DESKBOOK SERIES: INTERESTS IN REAL PROPERTY AND DUTIES OF THIRD 

PARTIES § 10.2(2) (4th ed. 2015). Texas was the first state to pass a homestead 

exemption law in 1839, and 18 more states passed homestead laws between 

1848 and 1852. Goodman, supra, at 470. These laws “aimed at providing a 

measure of security in an increasingly insecure, volatile economy” that 

accompanied the development of capitalism in the United States. Goodman, 

supra, at 470. Before these laws, the United States experienced financial 

“panic[s]” that caused thousands to suffer from unemployment and bankruptcy 

and to lose their homes. Goodman, supra, at 471. In response, states passed 

homestead exemption laws that “promised to shield at least homes so that 

families no longer need worry that the breadwinner’s bad luck or incompetence 

would plunge an entire household into destitution.” Goodman, supra, at 471. 
No. 78230-4-I/10

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The Washington State Constitution mandates that “[t]he legislature shall 

protect by law from forced sale a certain portion of the homestead and other 

property of all heads of families.” CONST. art. XIX, § 1. Washington passed its 

first homestead law in 1895 under this constitutional mandate.7 LAWS OF 1895, 

ch. 64, § 1; REM. REV. STAT. § 528 (Supp. 1945).

 As was true with the first homestead laws in the nation, the purpose of 

Washington’s Homestead Act is to place qualifying homes, or portions of them,

beyond the reach of financial misfortune and to promote the stability and welfare 

of the state. Clark v. Davis, 37 Wn.2d 850, 852, 226 P.2d 904 (1951).

The law requires us to liberally construe the Homestead Act in favor of the 

debtor so it may achieve its purpose of protecting homes. In re Dependency of 

Schermer, 161 Wn.2d 927, 953, 169 P.3d 452 (2007) (“The [Homestead Act] is 

favored in law, and courts construe it liberally so it may achieve its purpose of 

protecting family homes.”); Baker, 149 Wn. App. at 212 (broadly interpreting the 

Homestead Act due to “the public policy involved in [Washington’s] homestead 

statutes” and “the sanctity with which the legislature has attempted to surround 

and protect homestead rights”); In re Tr.’s Sale of Real Property of Upton, 102 

Wn. App. 220, 223, 6 P.3d 1231 (2000) (“‘homestead and exemption laws are 

favored in law and are to be liberally construed’” (quoting In re Tr.’s Sale of Real 

Property of Sweet, 88 Wn. App. 199, 204, 944 P.2d 414 (1997))); Burch v. 

Monroe, 67 Wn. App. 61, 64, 834 P.2d 33 (1992) (noting that homestead laws 

 

7 Washington Territory passed its first homestead law in 1860. Goodman, supra

at 472.
No. 78230-4-I/11

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are enacted “‘in the interest of humanity’” because “[t]heir intent is to ensure 

shelter for families” (quoting Macumber v. Shafer, 96 Wn.2d 568, 570, 637 P.2d 

645 (1981))); Webster v. Rodrick, 64 Wn.2d 814, 816, 394 P.2d 689 (1964)

(stating that homestead statutes “do not protect the rights of creditors; they are in 

derogation of such rights” (citing First Nat’l Bank of Everett v. Tiffany, 40 Wn.2d 

193, 242 P.2d 169 (1952))); Downey v. Wilber, 117 Wash. 660, 661, 202 P. 256 

(1921) (noting that the purpose of the Homestead Act “is to prevent a forced sale 

of the home; in other words, to secure the claimant and [their] family in the 

possession of [their] home”).

Washington’s Homestead Act defines a “homestead” as “real or personal 

property that the owner uses as a residence.” RCW 6.13.010(1). While mobile 

homes were the first form of personal property covered by the Act, the legislature 

amended the Act in 1993 to cover “personal property that the owner uses as a 

residence” so as to extend homestead protection to cars and vans. FINAL B. REP.

ON SUBSTITUTE S.B. 5068, 53d Leg., Reg. Sess. (Wash. 1993) (“[b]ecause some 

Washington citizens reside on their boats or in their cars or vans, it has been 

recommended that the homestead exemption’s scope be expanded to include 

any personal or real property that the owner uses as a residence”). “Once the 

owner occupies the property as a principal residence, a homestead exception is 

established automatically without a declaration.” Nw. Cascade, Inc. v. Unique 

Constr., Inc., 187 Wn. App. 685, 697-98, 351 P.3d 172 (2015). A “homestead is 

exempt from attachment and from execution or forced sale for the debts of the 

owner up to the amount specified in RCW 6.13.030.” RCW 6.13.070(1). 
No. 78230-4-I/12

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2. Declaration of homestead

The City agrees that a truck may qualify for homestead protection. But it

asserts that under RCW 6.13.040, Long needed to file a declaration of 

homestead for the Act to protect his truck. Long contends that occupying his 

vehicle as his principal home rendered it automatically protected. We agree with 

Long.

We review de novo issues of statutory interpretation. Nw. Cascade, 187 

Wn. App. at 696. We “‘look first to the plain meaning of the statutory language, 

and . . . interpret a statute to give effect to all language, so as to render no 

portion meaningless or superfluous.’” Benson v. State, 4 Wn. App. 2d 21, 26, 

419 P.3d 484 (2018) (quoting Rivard v. State, 168 Wn.2d 775, 783, 231 P.3d 186 

(2010)). Our fundamental objective when construing a statute is to determine 

and carry out the legislature’s intent. King County v. King County Water Dist.

No. 20, 194 Wn.2d 830, 853, 453 P.3d 681 (2019). 

RCW 6.13.040(1) lists circumstances under which the homestead 

exemption automatically protects property, and circumstances that require a 

declaration of homestead for the exemption to apply:

Property described in RCW 6.13.010 constitutes a homestead and is 

automatically protected by the exemption described in RCW 

6.13.070 from and after the time the real or personal property is 

occupied as a principal residence by the owner or, if the homestead 

is unimproved or improved land that is not yet occupied as a 

homestead, from and after the declaration or declarations required 

by the following subsections are filed for record or, if the homestead 

is a mobile home not yet occupied as a homestead and located on 

land not owned by the owner of the mobile home, from and after 

delivery of a declaration as prescribed in RCW 6.15.060(3)(c) or, if 
No. 78230-4-I/13

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the homestead is any other personal property, from and after the 

delivery of a declaration as prescribed in RCW 6.15.060(3)(d).

(Emphasis added.) 

The opening clause of the subsection provides, “Property described in 

RCW 6.13.010 constitutes a homestead and is automatically protected . . . from 

and after the time the real or personal property is occupied as a principal 

residence by the owner.” RCW 6.13.010(1) defines a “homestead” as “real or 

personal property that the owner uses as a residence.” Thus, because Long 

occupied his truck as a principal residence, the homestead exemption

automatically applies.

The City points to the final clause in RCW 6.13.040(1) and asserts that the 

language requiring a declaration for “any other personal property” applies to 

Long’s truck. But such a reading would render meaningless the terms “any 

other.” See Benson, 4 Wn. App. 2d at 26. The final clause refers to personal 

property other than the personal property listed in the opening clause (i.e., 

personal property described in RCW 6.13.010). Thus, the City’s reading would 

have the final clause contradict the opening clause.8 

 

8 The City’s interpretation also appears inconsistent with case law providing that 

property occupied as a residence is automatically protected as a homestead without a 

declaration. See Schermer, 161 Wn.2d at 953 (“A home automatically becomes a 

homestead when the owners use the property as their primary residence”); Fed. 

Intermediate Credit Bank of Spokane v. O/S Sablefish, 111 Wn.2d 219, 229, 758 P.2d 

494 (1988) (“The Legislature substantially rewrote the homestead act in 1981. The 

major purpose of this effort was to make the homestead classification automatic once 

the property is occupied as a permanent residence.”); Felton v. Citizens Fed. Sav. &

Loan Ass’n of Seattle, 101 Wn.2d 416, 420, 679 P.2d 928 (1984) (“possession was (and 

is) the key to the right to homestead”); Viewcrest Condo. Ass’n v. Robertson, 197 Wn. 

App. 334, 340, 387 P.3d 1147 (2016) (“Once property is occupied as a primary 

residence, a homestead is automatically created.”); Nw. Cascade, 187 Wn. App. at 697-

98 (“Once the owner occupies the property as a principal residence, a homestead 

exception is established automatically without a declaration.”); In re Wilson, 341 B.R. 21, 
No. 78230-4-I/14

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The City supports its interpretation of RCW 6.13.040(1) by citing the 

declaration requirements for “other personal property” set forth in 

RCW 6.15.060(3)(d). In a declaration for “other personal property” the debtor 

must state that they reside on the personal property as a homestead. 

RCW 6.15.060(3)(d). The City claims that if “other personal property” from 

RCW 6.13.040(1) did not refer to occupied personal property, then 

RCW 6.15.060(3)(d) would not require the debtor to state that they reside on the 

personal property.

The two statutes do appear inconsistent. While RCW 6.13.040(1)

provides that occupied personal property is automatically protected, 

RCW 6.15.060(3)(d) implies that a declaration is required for the Act to protect 

such property. Thus, the statute is susceptible to more than one reasonable 

meaning. Statutes that can be reasonably interpreted in two or more ways are 

ambiguous. Payseno v. Kitsap County, 186 Wn. App. 465, 469, 346 P.3d 784 

(2015). When statutes are ambiguous, it is appropriate for courts “to resort to 

aids to construction, including legislative history.” King County, 194 Wn.2d at 

853. Ultimately, we must harmonize related statutory provisions to carry out a 

consistent scheme that maintains the statute’s integrity. King County, 194 Wn.2d 

at 853. And again, with respect to the Homestead Act, the law requires us to 

liberally construe the Act in favor of the homesteader. Schermer, 161 Wn.2d 

at 953.

 

25-26 (9th Cir. 2006) (stating that an automatic homestead exemption is created for real 

or personal property from and after the time the property is occupied as a principal 

residence by the owner).
No. 78230-4-I/15

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When a statute is ambiguous, courts “‘rely on statutory construction, 

legislative history, and relevant case law to determine legislative intent.’” 

Payseno, 186 Wn. App. at 469 (quoting State v. Rice, 180 Wn. App. 308, 313, 

320 P.3d 723 (2014)). The final bill report on the 1993 amendment states that 

the legislature sought to expand the scope of the exemption “to include any

personal or real property” because some citizens resided on their boats or in their 

cars or vans. FINAL B. REP. ON SUBSTITUTE S.B. 5068 (emphasis added). The 

report’s summary also provides that “[t]he definition of homestead is expanded to 

include any real or personal property that the owner uses as a residence.” FINAL 

B. REP. ON SUBSTITUTE S.B. 5068 (emphasis added). This history shows the 

legislature intended to for the Act to automatically protect people residing in their 

vehicles. Moreover, this broader interpretation of the types of property 

automatically protected under the Act maintains the statute’s integrity by effecting 

its overall purpose of protecting homes.

The undisputed evidence shows that Long lived in his truck when the City 

impounded it. Because the legislative history shows an intention for broad 

protections of personal property and because we must liberally construe the Act, 

we interpret the Homestead Act not to require a declaration for personal property 

that the owner is occupying as a principal residence. Thus, the truck constituted 

a homestead and the homestead exemption applied. 

3. Attachment

The City claims that the lien resulting from the impoundment of Long’s 

truck did not violate the Homestead Act because the payment plan, which does 
No. 78230-4-I/16

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not encumber Long’s truck, extinguished it. Long argues a lien was automatically 

placed on his truck upon it being towed, and this constituted an attachment that 

violated the Homestead Act. We determine that the lien never attached to Long’s 

truck. 

As stated above, under Washington law, “[a] registered tow truck operator 

who has a valid and signed impoundment authorization has a lien upon the 

impounded vehicle for services provided in the towing and storage of the 

vehicle.” RCW 46.55.140(1). For a towing company to release an impounded 

vehicle, SMC 11.30.120(B) requires the registered owner to pay all the 

accumulated impound debt to the towing company. In cases of extreme financial 

hardship, however, a magistrate may allow the registered owner to make 

payments over time if there is an effective guarantee of payment. 

SMC 11.30.160(B). If a magistrate sets up such a payment plan, the City pays

the costs of impoundment to the towing company. SMC 11.30.160(B).

Because statutes creating liens are in derogation of the common law, we 

strictly construe them. City of Algona v. Sharp, 30 Wn. App. 837, 843, 638 P.2d 

627 (1982) (citing Dean v. McFarland, 81 Wn.2d 215, 500 P.2d 1244 (1972)). 

Unless the statute lists a lien among the several types that one may execute 

against a homestead, courts must infer that the legislature intended the omission 

of the lien type from the Homestead Act. Sharp, 30 Wn. App. at 842. There is 

not a statutory provision for execution or forced sale of a homestead to satisfy 

liens under RCW 46.55.140(1). See RCW 6.13.080. Because “[t]he homestead 

is . . . a species of land tenure exempt from execution and forced sale in all but 
No. 78230-4-I/17

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the enumerated circumstances,” a lien type not enumerated in the Act cannot be 

superior to the homestead. Sharp, 30 Wn. App. at 843.

As for the attachment of liens under RCW 46.55.140(1), RCW 6.13.090

states, “A judgment against the owner of a homestead shall become a lien on the 

value of the homestead property in excess of the homestead exemption . . . .” 

While courts have not yet addressed the attachment process for liens under 

RCW 46.55.140(1), they have determined that “a general judgment lien does not 

operate upon, and does not attach to, premises which constitute a homestead.” 

Locke v. Collins, 42 Wn.2d 532, 535, 256 P.2d 832 (1953); In re DeLavern, 337 

B.R. 239, 242 (Bankr. W.D. Wash. 2005) (noting that, under Washington’s 

Homestead Act, a judgment lien “cannot attach to homestead property”). 

Instead, “[l]iens commenced under RCW 6.13.090 encumber the value in excess

of the homestead exception.” In re Deal, 85 Wn. App. 580, 584, 933 P.2d 1084 

(1997).

We see no reason why the attachment law for liens under 

RCW 46.55.140(1) would differ from that for judgment liens, and therefore apply 

these principles to the issue before us. Thus, while RCW 46.55.140(1) created a 

lien on Long’s truck, it could not attach. See DeLavern, 337 B.R. at 242 (“Thus, 

while a judgment lien is created on property rather than value pursuant to Wilson 

Sporting Goods,

[9] under the more specific analysis of Deal and Sweet, it cannot 

attach to homestead property.”). Further, because Long’s truck did not have 

 

9 Wilson Sporting Goods Co. v. Pedersen, 76 Wn. App. 300, 886 P.2d 203 

(1994).
No. 78230-4-I/18

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value above the homestead exemption, there was no property to which the 

RCW 46.55.140(1) lien could attach. For these reasons, we reject Long’s 

argument that the attachment of a lien to his truck violated the Homestead Act.

4. Withholding Truck under Threat of Forced Sale

Long claims the City would release his truck, which it withheld under the 

threat of forced sale, only if he agreed to a payment plan. The City responds that 

the sale of an unclaimed vehicle is not forced. We decide that the City could not

withhold Long’s truck under the threat to forcibly sell it, or threaten to forcibly sell 

it unless he agreed to pay the associated fees, without violating his homestead

rights. For these reasons, we determine the payment plan is void.

If a registered owner does not claim their vehicle or contest impoundment 

within 15 days of the tow, the tow truck operator “shall conduct a sale of the 

vehicle at public auction.” RCW 46.55.130(1). The tow truck operator uses the 

proceeds from the sale to satisfy its lien and remits any surplus to the State. 

RCW 46.55.130(2)(h). The registered owner may seek the surplus proceeds 

within one year of the sale. RCW 46.55.130(2)(h). 

Here, the City does not contest Long’s assertion that Lincoln Towing 

would have sold his truck at public auction on November 5 if he had not agreed 

to the payment plan three days earlier. Instead, it claims that any sale of the 

truck would not have been a “forced sale” because Long consented to any such 

sale by willfully violating the 72-hour Rule. 

Washington courts have defined a “forced sale” as a sale with an element 

of compulsion:
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“A forced sale is generally a transaction in which there is an element 

of compulsion on the part of either the seller or the buyer. If the 

element of compulsion is based upon purely economic reasons, the 

sale is generally considered voluntary . . . Where, however, a seller 

or buyer is forced to act under a decree, execution or something 

more than mere inability to maintain the property, the element of 

compulsion is based upon legal, not economic, factors.”

Felton v. Citizens Fed. Sav. & Loan Ass’n of Seattle, 101 Wn.2d 416, 422, 679 

P.2d 928 (1984) (alteration in original) (quoting State v. Lacey, 8 Wn. App. 542, 

549, 507 P.2d 1206 (1973)). “Impoundment under Wash. Rev. Code § 46.55 is 

not a consensual consumer transaction.” Betts v. Equifax Credit Info. Servs., 

Inc., 245 F. Supp. 2d 1130, 1133 (W.D. Wash. 2003). Although the City argues 

that selling an unclaimed vehicle at a public auction is a consensual transaction, 

a state statute, not the registered owner, authorizes the sale of the vehicle. See

Betts, 245 F. Supp. 2d at 1134 (stating that impoundments are not consensual 

because they are authorized by state statute, not the vehicle’s owner). In other 

words, legal factors compel the sale. Accordingly, such a transaction constitutes 

a forced sale. Thus, because Long’s truck constituted his homestead, the City—

through the tow operator—could not forcibly auction it. 

While the City did not ultimately forcibly sell Long’s truck, it did withhold 

his truck under the threat of such a sale unless he agreed to pay the 

impoundment costs. Liberally construing the Act to achieve its purpose of 

protecting homes, we determine that this violated the Homestead Act. The City 

had no legal authority to make the threat to induce Long to enter a payment plan. 

Thus, we conclude the payment plan is void. See Sharp, 30 Wn. App. at 843

(noting that a sale of an exempted homestead is void).
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B. Eighth Amendment

The City argues the trial court erred by determining that the impoundment 

costs violated the Eighth Amendment. Long contends that both the 

impoundment and the associated costs constituted excessive punishment. We 

determine that, assuming without deciding that the impoundment of Long’s truck 

and the associated costs constituted penalties, they fell short of constitutional 

excessiveness. 

“Constitutional interpretation is a question of law reviewed de novo.” State 

v. Ramos, 187 Wn.2d 420, 433, 387 P.3d 650 (2017). 

The Eighth Amendment to the United States Constitution provides,

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and 

unusual punishments inflicted.” The amendment’s purpose, apart from the bail 

clause, is to limit the government’s power to punish. Austin v. United States, 509 

U.S. 602, 609, 113 S. Ct. 2801, 125 L. Ed. 2d 488 (1993). The Fourteenth 

Amendment’s due process clause makes the Eighth Amendment’s excessive 

fines clause applicable to the states. Timbs v. Indiana, __ U.S. __, 139 S. Ct. 

682, 687, 203 L. Ed. 2d 11 (2019).

When determining how the Eighth Amendment affects a specific civil in 

rem forfeiture, courts address two questions: “(1) Does the forfeiture constitute 

punishment, and (2) if so, is that punishment excessive?” Tellevik v. Real 

Property Known as 6717 100th Street S.W., 83 Wn. App. 366, 372, 921 P.2d 

1088 (1996). The party challenging the constitutionality of a forfeiture bears the 
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burden of demonstrating an Eighth Amendment violation. United States v. Jose, 

499 F.3d 105, 108 (1st Cir. 2007).

In evaluating excessiveness, “[t]he touchstone of the constitutional inquiry 

under the Excessive Fines Clause is the principle of proportionality: The amount 

of the forfeiture must bear some relationship to the gravity of the offense that it is 

designed to punish.” United States v. Bajakajian, 524 U.S. 321, 334, 118 S. Ct. 

2028, 141 L. Ed. 2d 314 (1998). Thus, a punitive forfeiture violates the Eighth 

Amendment if it is “grossly disproportional to the gravity of a defendant’s 

offense.” Bajakajian, 524 U.S. at 334. If the value of the fine or forfeiture is 

within the range prescribed by the legislative body, a strong presumption exists 

that a forfeiture is constitutional. United States v. Seher, 562 F.3d 1344, 1371 

(1st Cir. 2009).

Here, impounding Long’s truck and requiring him to pay the associated 

fees is not a disproportionate punishment for a parking violation. Moving a 

vehicle has a direct relationship to the offense of illegally parking. And the fees 

are not excessive because the impoundment costs repay the City’s agent, 

Lincoln Towing, for the costs of towing the vehicle based on contract. “The 

government is entitled to rough remedial justice.” State v. Clark, 124 Wn.2d 90, 

103, 875 P.2d 613 (1994) (determining forfeitures of the defendant’s homestead 

and motorhome were not excessive because their value nearly equaled the cost 

of prosecution and investigation), overruled on other grounds by State v. Catlett, 

133 Wn.2d 355, 945 P.2d 700 (1997). Moreover, towing illegally parked vehicles 

and requiring the owner to pay the associated costs are the exact penalties the 
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city council authorized for a violation of the 72-hour Rule. See

SMC 11.72.440(E). Thus, a strong presumption exists that the penalties were 

not excessive, which presumption Long does not overcome. For these reasons, 

we conclude that neither the impoundment nor the associated costs constituted 

excessive punishment under the Eighth Amendment.

C. Substantive Due Process

Long contends that the City violated his substantive due process rights by 

towing his car because it deprived him of a shelter and exposed him to inclement 

weather. The City argues that Long cannot assert this claim to obtain relief from 

impoundment. We agree with the City.

The Fourteenth Amendment’s due process clause provides, “No state 

shall . . . deprive any person of life, liberty, or property, without due process of 

law.” U.S. CONST. amend. XIV, § 1. The substantive component of the clause 

bars certain arbitrary and wrongful government actions regardless of procedural 

fairness. Foucha v. Louisiana, 504 U.S. 71, 80, 112 S. Ct. 1780, 118 L. Ed. 2d 

437 (1992). The clause, however, “is phrased as a limitation on the State’s 

power to act, not as a guarantee of certain minimal levels of safety and security.” 

DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 195, 109 S. 

Ct. 998, 103 L. Ed. 2d 249 (1989). Thus, “[the clause’s] language cannot fairly 

be extended to impose an affirmative obligation on the State to ensure that those 

interests do not come to harm through other means.” DeShaney, 489 U.S. 

at 195. 
No. 78230-4-I/23

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An exception to this rule of nonliability, however, exists through the statecreated danger doctrine. Munger v. City of Glasgow Police Dep’t, 227 F.3d

1082, 1086 (9th Cir. 2000). Thus, some courts have recognized that plaintiffs 

can argue the doctrine to hold states liable under 42 U.S.C. § 1983.10 Henry A. 

v. Willdren, 678 F.3d 991, 1002 (9th Cir. 2012) (“The State can also be held 

liable under the Fourteenth Amendment’s Due Process clause . . . ‘where state 

action creates or exposes an individual to a danger which [they] would not have 

otherwise faced.’” (quoting Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061 

(9th Cir. 2006))); Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 249 (5th Cir. 

2003) (noting that the Tenth, Sixth, Third, Second, and Ninth Circuits have 

recognized state actors may be held liable under the state-created danger 

doctrine if they knowingly endanger a person).

11

 Long cites no case that 

considers the state-created danger doctrine in a context other than a 42 U.S.C. 

§ 1983 suit. 

Long cites two cases, Lawrence v. Texas, 539 U.S. 558, 578-79, 123 S. 

Ct. 2472, 156 L. Ed. 2d 508 (2003), and Foucha, 504 U.S. at 77-83, to argue that 

a plaintiff may raise a due process claim to obtain relief in an enforcement action. 

 

10 Neither the United States Supreme Court nor any Washington court has 

endorsed this doctrine. 

11 Henry A. concerned a 42 U.S.C. § 1983 suit against a county and county 

officials for alleged systematic failures in its foster care system that injured children in its 

care. 678 F.3d at 996-98. Kennedy concerned a 42 U.S.C. § 1983 claim against a 

police officer. 439 F.3d at 1057. In that case, a couple reported to the officer that a 13-

year-old neighbor had molested their child and informed the officer of the 13-year-old’s

violent tendencies. Kennedy, 439 F.3d at 1057-58. Though the officer told the couple 

he would notify them before speaking to the neighbor about their complaint, he failed to 

do so. Kennedy, 439 F.3d at 1058. Later that night, the 13-year-old attacked the 

couple, shooting the woman and fatally shooting her husband. Kennedy, 439 F.3d at 

1058.
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But neither of these cases addresses the state-created danger doctrine or 

suggests that we should expand a narrow exception for liability to serve as a way 

to pursue relief in civil enforcement actions. As a result, we determine Long 

cannot raise the state-created danger doctrine to seek relief from impoundment.

D. The Private Affairs Guaranty

In supplemental briefing, Long relies on State v. Villela, 194 Wn.2d 451, 

450 P.3d 170 (2019), to argue that the impounding officer’s failure to consider 

whether impoundment was reasonable under Long’s individual circumstances or 

whether reasonable alternatives existed to impoundment violated article I, 

section 7 of the state constitution—i.e., the private affairs guaranty. The City 

argues that Long cannot raise this issue for the first time on appeal. We agree 

with the City.

An appellate court may refuse to review any claim of error that a party did 

not raise before the trial court. RAP 2.5(a). A limited exception exists, however, 

for manifest errors affecting a constitutional right. RAP 2.5(a)(3). “To determine 

whether manifest constitutional error was committed there must be a ‘plausible 

showing by the [appellant] that the asserted error had practical and identifiable 

consequences.’” State v. A.M., 194 Wn.2d 33, 38, 448 P.3d 35 (2019) (alteration 

in original) (internal quotation marks omitted) (quoting State v. O’Hara, 167 

Wn.2d 91, 99, 217 P.3d 756 (2009)). An appellant meets this requirement if they 

make a plausible showing that the error led to actual prejudice. A.M., 194 Wn.2d

at 39.
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To determine whether Long makes a plausible showing of actual 

prejudice, we consider whether Long has sufficiently asserted a violation of

article l, section 7. Courts use a two-step analysis to determine whether the 

government violated a person’s rights under article I, section 7 of the Washington 

Constitution. Villela, 194 Wn.2d at 458. “First, [courts] ‘determine whether the 

action complained of constitutes a disturbance of one’s private affairs.’ If so, 

[they] turn to the second step: ‘whether authority of law justifies the intrusion.’” 

Villela, 194 Wn.2d at 458 (citation omitted) (quoting State v. Puapuaga, 164 

Wn.2d 515, 522, 192 P.3d 360 (2008)). Regarding the second step, our 

Supreme Court has identified three instances in which a vehicle may be 

impounded:

A vehicle may be lawfully impounded (1) as evidence of a crime, when 

the police have probable cause to believe the vehicle has been stolen

or used in the commission of a felony offense; (2) under the 

“community caretaking function” if (a) the vehicle must be moved

because it has been abandoned, impedes traffic, or otherwise 

threatens public safety or if there is a threat to the vehicle itself and 

its contents of vandalism or theft and (b) the defendant, the 

defendant's spouse, or friends are not available to move the vehicle; 

and (3) in the course of enforcing traffic regulations if the driver 

committed a traffic offense for which the legislature has expressly 

authorized impoundment.

State v. Tyler, 177 Wn.2d 690, 698, 302 P.3d 165 (2013) (quoting State v. 

Williams, 102 Wn.2d 733, 742-43, 689 P.2d 1065 (1984)). Ultimately, “an 

impound is lawful under article l, section 7 only if, in the judgment of the 

impounding officer, it is reasonable under the circumstances and there are no 

reasonable alternatives.” Villela, 194 Wn.2d at 460.
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As Long’s new claim arises under article I, section 7, it implicates a 

constitutional right. But Long does not show a plausibility of practical and 

identifiable consequences because he fails to show that the impoundment was 

unlawful under article I, section 7. Because an impoundment is a seizure under 

our constitution, Long shows a disturbance of his private affairs and meets the 

first step of the analysis. See Villela, 194 Wn.2d at 458. Turning to the second 

step, we must determine whether authority of law justifies the intrusion. Here, 

the SMC permits police to impound vehicles parked in violation of the 72-hour 

Rule. SMC 11.72.440(E). Thus, the police could lawfully impound Long’s truck 

in enforcing traffic regulations.12

Long also claims the impoundment was unlawful because the City did not 

consider reasonable alternatives to impounding the truck. But Long told the 

officers that the truck was inoperable and he needed a part to repair it. The PEO 

was aware of this as well. Long also was not present when the PEO towed the 

vehicle. Thus, both at the time the officers called the PEO and when the PEO 

arrived to tow the truck, there did not appear to be a reasonable way to move the 

truck other than to impound it. Indeed, Long does not suggest a reasonable 

alternative to the impoundment. 

Because Long does not show that the impoundment was unlawful under

article I, section 7, he fails to make a plausible showing that the asserted 

 

12 SMC 11.72.440(E) falls under Title 11, “Vehicles and Traffic,” Subtitle l, “Traffic 

Code.”
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constitutional violation had practical and identifiable consequences. We decline 

to review the claim for the first time on appeal. 

III. CONCLUSION

We affirm the superior court’s determination that the City violated Long’s 

homestead rights by withholding his truck under the threat of forced sale and 

refusing to release it until he signed a payment plan. Thus, we also affirm the 

superior court’s decision to void the payment plan. And we affirm the superior 

court’s conclusion that the City did not violate Long’s substantive due process 

rights. Finally, we reverse the superior court’s determination that the 

impoundment costs violate the Eighth Amendment and affirm its conclusion that 

the impoundment itself did not constitute excessive punishment.

We affirm in part and reverse in part.

WE CONCUR: