### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 11–50626

RBIII, L.P., Plaintiff - Appellee
v. CITY OF SAN ANTONIO, Defendant - Appellant

Appeals from the United States District Court for the Western District of Texas

Before DeMOSS, SOUTHWICK, and HIGGINSON, Circuit Judges. DeMOSS, Circuit Judge: This appeal arises from a dispute between the City o f San Antonio (the “City”) and RBIII, L.P. (“RBIII”). On January 10, 2008, the City demolished a dilapidated building (the “Structure”) located at 8 14 South Nueces Street (the “Property”) in San Antonio, Texas. It is undisputed that the City did not provide notice to RBIII, the owner of the Property, before razin g t h e S t r u cture. RBIII filed suit a g ainst the City, asserting a host o f state and federal claims. The district court granted s ummary judgment for t he City on all claims except a Fourteenth Amendment procedural d u e pro c e s s c laim and a Fourth Amendment unreasonable search a nd seizure claim. Those claims w ere tried to a jury, which returned a verdict in favor of RBIII. The City appeals. U n i t e d S t a te s C o u rt o f A p p e al s F i f t h C i rc u i t 

### F I L E D April 23, 2013 Ly l e W . Cay ce Clerk Case: 11-50626 Document: 00512217844 Page: 1 Date Filed: 04/23/2013No. 11-50626 I. A. On D ecember 27, 20 0 7 , Irma Ybarra, a code enforcement officer of the City, d rove by the Property in response to a neighbor’s complaint t hat the Structure was unsecured a nd dilapidated. Ybarra conducted a more thorough inspection on December 28, 2007. She f o u n d t hat, i n a ddition to being vacant

a n d unsecured, t he Structure smelled o f mold and exhibited fire and w a t e r dam a g e , i n cluding holes in the c eilings, walls, and floors. Ybarra a lso found evidence of unauthorized people coming a nd going from the Structure, including trash, graffiti, missing fixtures, and an unhinged gate. Based o n her inspection, Yb a r r a determined that the Structure had become a harbor for u nauthorized persons, was in danger of collapsing, and was too unstable to attempt to secure. She r equested that a b u i l d i n g i nspector review the Structure. Ramiro Carillo, a certified building inspector w o rking for the City, examined the Struc t u r e o n December 28, the s ame day Ybarra conducted her inspection. He c o n c l u d ed that the foundation, walls, and roof components were in extremely poor condition and t hat the Structure constituted

an “imminent threat to life, safety, a nd/or property, requiring immediate demolition.” He also c oncluded that “no other a b atement procedure was reasonably available under the circumstances.” Carillo presented his r eport and photographs o f the Structure t o Roderick Sanchez, t h e director of the City’s Planning and Development Services Department, and recommended the Structure for emergency demolition. After

r e v i e w i n g the r eport and photographs, Sanchez concurred i n Carillo’s recommendation. David Garza, the director of the City’s Housing and

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Neighborhood Se rvi c e s D e p a rt m e n t , a l s o concurred in the recommendation after reviewing photographs of t h e Structure and conferring w ith a member of his staff who had visited the Property. On January 3, 2008, Carillo and Garza each signed a ffidavits stating that it was his d e t e r m ination that the S tructure “presented a clear a nd imminent threa t to life, safety, a nd/or property necessitating a n immediate demolition” a n d that “no other abatement p r ocedure

was reasonably available under these circumstances.” Carillo and Garza reexecuted identical affidavits on January 7, 2008. Ybarra o btained an environmental survey from the City’s Environmental Services Department and also notified the City’s H istoric Preservation Office of the p l a nned demolition. She arranged t o h a ve the g as a nd electricity service cut-off. She a l s o s e a rched the City’s permit records and determined that no permits h ad been obtained to repair the Structure. She revisited the Property

on January 9 , 2008 to confirm that no repair w ork had been done. The S tructure

was demol i s h ed o n January 10, 2008. 1 The next day, the City s ent a notice to RBIII informing it that the City had demolished the Structure as an “Emergency Case.” It i s u n d i s p u t ed that the City did n ot provide notice t o RBIII of the
p e n ding demolition of the Structure at a ny time between December 28 a n d January 10.

1 The City pres ented evid ence that the reas on thirteen d ays p as s ed betw een the initial ins p ection and the dem olition w as that the City need ed to ens ure that t h e d e m o lition could p roceed s af

ely w hile op erating w ith only a “s keleton crew ” during the holid ay s eas on. RBIII ques tioned the City’s exp lanation and sugges ted tha t t h e C i t y could have d em olis hed the Structure s ooner, but d id not argue that the City d elayed the d em olition intentionally or in bad f aith.
3 Case: 11-50626 Document: 00512217844 Page: 3 Date Filed: 04/23/2013No. 11-50626 B. R B I I I f iled suit against the City and Ibarra’s supervisor, Reyes Hernandez, in the 2 28th Judicial District Court of Bexar County on January 28, 2009 a lleging claims u nder local, state, a nd federal law. 2 T he City filed a notice of removal to federal court. T h e district court granted s ummary judgment in favor of Hernandez o n all of RBIII’s claims. The district court granted summary j u d g m e n t in f

avor of the City on all claims except for two: (1) t hat the City violated R B I II’s Fourteenth Amendment right to procedural d ue process by demolishing the S t ructure w ithout providing notice, and (2) that the City unreasonably seized the Structure in violation of the Fourth Amendment. The court also held at the summary judgment stage t ha t t h e City had complied with San Antonio Code of Ordinances § 6-175 (the “Ordinance”), which governed summary demolitions. T he O r dinance, w hich has since been r epealed, provided that the City could demolish d angerous s tructures w ithout prior notice to the o wner when “due to one or more struct u r a l c o nditions threatening the structural in t e grity of a building, there is a clear and imminent danger to the l i f e , safety o r property of any person.” Two of three designated o ffic i a l s , including the Director of Development Services, had to concur in the determination that the building posed an imminent threat. The Ordinance also required that the t wo officials f i n d that “no other abatement procedure is reasonably available except d emolition.” The d emolition had to o ccur within 72 hours of when an official viewed the building and the owner of the building had

2 RBIII brought its f

ed eral cons titutional claim s p urs uant to 42 U. S. C. § 1983, but the City has not rais eda d ef ens e bas ed on M

onel l v
. D ep a rtm ent of Soci a l Serv i ces of the Ci ty of N ew York , 436 U

. S. 658 ( 1978) in its ap p ellate brief ing. For the reas ons set f orth in Ki nni son v
. Ci ty of Sa n A ntoni o , 480 F. Ap p ’x 271, 274- 76 ( 5th C ir. 2012 ) , w e h o l d t h a t the City has
w aived any M

onel l def ens e w ith res p ect to this ap p eal.

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to be notified after the demolition. 3 C. The district court held a jury trial o n RBIII’s F ourth and F o u r t eenth Amendment claims from M arch 28 to March 30, 2 011. The jury found in favor of RBIII on both claims a nd awarded $27,500 in d amages. On appeal, the City
argues, among other things, that the district court’s j u r y i nstructions did not accurately reflect the applicable law and that, under t he correct legal standards, it was entitled to judgment as a matter of law. II. A. Wh i l e th e F o u rt e e n th Am e n d m e nt’s Due Pro c e s s C l a u s e g e n e r a l ly r e qu i r e s that t he State provide an opportunity to be heard before it tak e s p roperty, predeprivation notice is not always r e q u i r e d

. Gilbert v. H omar , 5 20 U .S. 924, 930 (1997). In particular, where the State acts to abate an emergent threat to public safety, postdeprivation process satisfies the Constituti o n ’ s p r o c e du r a l due p r o c e s s requirement. See Hodel v. Va. Surface M i ning & Reclamation Ass’n, I n c
. , 452 U.S. 2 64, 3 01-03 (1981); see also Gilbert , 520 U.S. at 930 (“[W]h e r e a State must act quickly, or where i t would be i mpractical to provide
p r e d e p riv a t i o n p r o c e s s , postdeprivation process satisfies the r equirements of the Due Process Clause.”). Determini ng whether a pre-notice deprivation of property comports with procedural due process therefore r equires an evaluation of ( 1) t he State’s determination that t here existed a n e m e r g ency s ituation necessitating quick a c t i o n and (2) t he a dequacy of postdeprivation process. E lsmere Park Club, L .P. v. Town of Elsmere , 542 F

. 3d 412, 417-420 (3d C i r
.

3 For the f

ull text of the O rd inance, s ee Ki nni son , 480 F. Ap p ’x at 272- 73.
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2008); Catanzaro v. Weiden , 188 F.3d 56, 61-62 (2d Cir. 1999). How t h e fact-finder approaches the first issue depends on whether the State acted pursuant to a valid summary-action ordi n a n c e. If it did, then the State’s determination t hat it was faced with an emergency requiring a summary abatement is entitled to deference. Catanzaro , 188 F.3d at 6 2

- 6 3 ; s e e also Kinnison v. City of San Antonio , 480 F

. App’x 271, 277 (5th Cir. 2012); Elsmere Park Club, 542 F.3d a t 418. In such c a ses, the r elevant inquiry is not whether

an emergency actually existed, but whether t he S t a t e a c t ed arbitrarily or otherwise abused its di s c r e t i o n in concluding that there was an emergency requiring summary action. See Patel v. Midland M e m
. Hosp. & Med. Ctr. , 298 F.3d 333, 341 (5th Cir. 2002) (holding that t h e “ k e y question” in a pre-notice deprivation case is not whether there “was actually a danger” but whether the State had reasonab l e grounds for believing that a danger existed requiring
summary action); Elsmere Park Club , 5 42 F.3d at 416, 420 (holding that district court erred in finding procedural due process violation solely on the b asis that

“ the Town failed to present s ufficient evidence of exigent circumsta n c e s ” (internal quotation marks omitted)). This deference derives from the concern that “subjecting a decision to invok e a n e m e r gency procedure to an e xacting hindsight analysis, where every mistake, e ven if made in good faith, becomes a constitutional violation, [would] encour age delay and thereby potentially increase the public’s exposure to dangerous conditions.” Catanzaro , 188 F.3d at 63. With r espect to t he second issue—the adequacy of p o stdeprivation process—RBIII has not pled or other w i se argued that the p o stdeprivation

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remedies available t o it were p rocedurally inadequate. 4 While R BIII’s failure to do s o is not fatal t o its p rocedural due process c laim, 5 it does limit that claim to

an attack on the City’s determination that the S t r u c t u re presented a public emergency requiring summary abatement. See Catanzaro , 188 F.3d at 64. B. The Fourth Amendment requires that any seizure of property by t he State be reasonable. N

ew J e rsey v. T

.L.O., 469 U

. S. 3 25, 340 (1985) (“The fundamental command o f the Fourth Amendment is that searches and seizures be reasonable

. . . .”). “[T]he Fourth Amendment reasonab l eness of a seizure and demolition of nuisance property will ordinarily be established when the substantive and procedural safegu a rds inherent in state and municipal property standards

4 At trial, neither p arty p res ented evid ence on the is s ue of p os td ep rivation rem ed ies

. In its brief on ap p eal, RBIII argues that although it p led all available s tate and local rem ed ies in its original com p laint, the d is trict court granted s um m ary jud g m ent in f avor of the City on thos e claim s
. RBIII als o argues th a t i t c ould not s ue the C ity f or invers e cond em nation becaus e the d is trict court held tha t the Structure w as a nuis ance and granted s um m ary jud gm ent to the City on RBIII’s tak ings claim s
. Now here, how ever, d oes RBIII claim that its p os td ep rivation rem ed ies w ere p roced urally inad equate. I n p articular, even if RBIII is correct that it w ould have los t an invers e cond em nation suit due to the d is trict co u r t ’s nuis ance f ind ing, RBIII d oes not exp lain w hy it f ollo w s that invers e cond em nation is a p roced urally inad equate p os td ep rivation rem ed y. The D ue P roces s C laus e entitles R BIII to an op p ortunity to heard , not a s ucces s f ul outcom e.

5 As the p anel in Ki nni son correctly noted , w here a p laintif f “com p lains of a p rop erty d ep rivation ef

f ected by City em p loyees acting w ith authorization and p urs uant to p roced ures enacted by the City, ” there is no requirem ent “to p lead and p rove the inad equacy of s tate- law
rem ed ies in ord er to bring a p roced ural d ue p roces s claim

. ” 480 F. Ap p ’x at 279 n. 14; see a lso Zi nerm on v
. Burch , 494 U

. S. 113, 117, 138- 39 ( 1990) (hold ing that p laintif f w as not required to plead inad equate p os td ep rivation rem ed ies w here com p lained of cond uct by public of f icials
w as not “rand o m and unauthorized ” but und ertak en p urs uant to s tatutorily d elegated authority) ; M

i tchel l v
. Fa nkha user , 375 F. 3d 477, 483- 84 ( 6th C ir. 2004) (hold ing that w here p laintif f w as d ep rive d of p rop erty p urs uant to es tablis hed s tate p roced ures and not by the rand om or unauthorized acts of s tate of f icials , p laintif

f was not required to p lead inad equate p os td ep rivation rem ed ies in ord er to bring a p roced ural d ue p roces s claim )

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ordinances have been fulfilled.” Freeman v. City of D a l l a s , 242 F.3d 642, 654 n.17 (5th Cir. 2001) (en banc). Because the F ourth A m e n d m e nt generally requires no more than d ue p rocess of law in summary a b a t e m e n t c ases, the outcome of a Fourth Am endment claim depends o n whether the s eizure c omplied with due process. See Flatford v. City of M o nroe , 17 F .3d 162, 1 70 (6th Cir. 1994) (citing Soldal v. C

ook Cnty., I

ll. , 506 U.S. 56, 7 1 (1992)); see also Kinnison , 480 F. App’x at 281 (finding “no reason t o d epart from the general p ractice of tethering the outcome of the Fourth Amendment i n qu i ry t o w h e th e r the property deprivation offended due process”). I II. A. On a ppeal, the City argues that the district court provided erroneous instructions to t he jury. With respect to the due process claim, the instructions read in relevant part: Under the Fourteenth Amendment’s Procedural Due Process Clause, a prope r ty owner is e ntitled to notice and/or a hearing before being deprived of its property. I n this case, the p a rties do n ot dispute that th e C i t y did not provide notice to RBIII before demolition.
In some cases, p r o perty may be seized without providing prior notice. The emergency s i t u a t i o ns in which it is considered reasonable to proceed without giving p r i o r notice are generally limit e d to situations i n which there i s an immediate danger to public. You m ust consider all the facts presented to y ou in order to determine whether the circumstances in the in s t a n t case excused the City from p rovid i n g n o t i ce to RBIII before d e molishing t h e property.

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The court’s instructions on t he Fourth Amendment claim, in relevant part, read as follows: Assessing the reasonableness of the seizure involves a c a reful balancing of the nature and quality o f the intrusion on t h e i n divi du a l ’ s F o u rth Am e ndment i nterest s a g a i n s t th e c o u n t e rv a i l i n g governmental interest at stake. It e ntails w eigh i n g a n umber of factors, including the danger posed by a building to p ublic safety. The private interests a t stake include the right to personal p roperty. Here, the City argue s t h a t the immediate demolition of RBIII’s property was necessary and reasonable d u e to the condition of t h e structure. Consider i n g all facts presented to you, you must weigh the public a nd p rivate interests at stake, and determin e whether RBIII has proved by a preponderance of the evidence that the C ity’s destruction of the property was unreasonable.
The City argues, as it did in the district court, that the jury charge should have stated t hat the City’s d ecision to i nvoke its em e r g e n c y powers under the Ordinance w a s e n t itled to deference and t hat t he C ity’s compliance with the Ordinance was proof of the reasonableness of its actions. B. “We review jury instructions f o r an abuse o f discretion.” Carrizales v. State Farm Lloyds , 518 F

. 3 d 3 4 3 , 348 (5th Cir. 2008). To establish error, the City must show that “the instruction as a whole ‘ creates substantial doubt as to whether the jury was properly guided.’” Id. (quoting Green v. Adm’rs of Tulane Educ. Fund , 284 F.3d 642, 659 ( 5th Cir. 2002)); see also Smith v
. Xerox Corp. , 602 F.3d 320, 325 (5th Cir. 2 010) (“In reviewing the jury charge we a sk whether the jury charge properly stated t h e applicable law and, if not, whether the challenged instruction affected the outcome of the case.”).

9 Case: 11-50626 Document: 00512217844 Page: 9 Date Filed: 04/23/2013No. 11-50626 C. RB I I I ’ s p rocedural due process claim did not challenge the Ordinance itself, but rather the C i ty’s application of the Ordinance to the particular circumstances of this case. 6 Because the City acted p ursuant to the Ordinance, its decision to demolish the Structure o n an emergency basis was e ntitled to deference a nd did not violate RBIII’s right to procedural due process unless it

was arbitrary or an abuse of discretion. See Catanzaro , 188 F.3d at 62 (holding tha t w here plaintiff does not challenge the validity of emergency demolition procedure, “there is no constitutional violation unless the d ecision t o invoke the
emergency procedure amounts to an abus e o f the constitutionally afforded discret i o n ” ); see also Kinnison , 480 F. App’x at 278 (holding that demolition without notice “may be excused f or procedural due process purposes only if the imminent-danger determination was not an abuse of discretion”); WWBITV, Inc.

v. Village of Rouses Point , 589 F.3d 46, 51 (2d Cir. 2009) (“[W]here an a dequate post-deprivation process exists, an of f i c ial reasonably believing on the basis of competent evidence that there is an emergency does not effect a constitutional violation b y ordering a building demolition without notice or a h e a ring.”); Elsmere Park Club , 542 F.3d at 418 (“Thus, in analyzing t h e T own’s decision to condemn summarily the apartments, we look to whether there was competent

6 RBIII d id argue in the dis trict court that the ord inance w a s “uncons titutionally vague, ” but only in connection w ith its equal p rotection and s ubs tantive d ue p roces s claim s
. Becaus e the City rep ealed the O rd inance af ter RBIII f

iled s uit, the d is trict court d i s m i s s ed RBIII’s vaguenes s claim as m oot. RBIII d id not thereaf ter s eek a ruling f

rom the d is trict court on the cons titutionality of t h e O r d i n a n c e and it has not cros s - ap p ealed the dis trict court’s ord er d is m is s ing its vaguenes s claim

. G iven thos e circum stances , w e have no hes itation i n f ollow ing the ap p roach of the Ki nni son p anel, which, f aced w ith s ubs tantially the sam e f acts , held that the p laintif

f’s p roced ural d ue p roces s claim “challen g e d only the m anner in w hich the City ap p lied the O rd inance in his s p ecif ic cas e. ” See Ki nni son , 480 F. Ap p’x at 277 & n. 9.
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evidence supporting the r easonable belief that the mold s ituation p resented an

eme r g e n c y , and t o whether the Town’s actions were otherwise arbitrary or an abuse of discretion.” (internal quotation marks omitted)). The district court, however, instructed the j ury that the City was excused from providing notice to RBII I o n l y if there was “an immediate danger to the public,” making no mention o f the City’s compliance with the Ordinance or the discretion resulting t herefrom. By doing so, the court improperly cast the

cen t r a l f

a c tual dispute as w hether o r not the S tructure posed an immediate danger to the public, when the issue should h ave been whether the City acted arbitrarily or abused its d iscretion in determining that t he Structure presented

an immediate danger. Se e P a t el , 298 F.3d at 341; see also WWBITV, Inc. , 589 F.3d at 51 (“Whether the offici a l a b u s e d his discretion or acted arbitrarily in concluding that a genuine e mergency exists is a fac t u a l i s s u e
. . . . ”). Because th i s error i n t he i nstructions misled the jury as to the central factual question in the case, we must vacate the district court’s judgment on RBIII’s due process claim and remand for further pro c e e d i n g s. See Septimus v
. Univ. of Houston , 399 F.3d 601, 6 08 (5th Cir. 2005) (vacating verdict where erroneous instructions misled the jury as to “the ultimate question in the c a se”); see also Carrizales , 518 F.3d a t 351 (remanding for new trial where district court e rroneously instructed jury on factual finding necessary for liability). This er ror in the j ury instructions affected not only RBIII’s due process claim, but also its Fourth Amendment claim. While t he instructions on the Fourth Amendment claim properly focused on the r easonableness of the City’s decision to demolish the Structure without notice, t he court’s instruction on the due process claim would have led the jury to believe that such a d ecision can

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only be reasonable when there is actually “an immediate d anger to public.” As such, the instructions ( 1 ) improperly s hifted the jury’s focus f rom the reasonableness of the C ity’s determination t hat the S tructure posed a public emergency to the accuracy of that determination, c f . Freeman , 242 F.3d at 654 (holding that in a s u m m a ry ab a t e m e nt c a s e “ F o u rth Amendment reasonableness

m e a n s non-arbitrariness”), and (2) failed to inform the jury that the Ci t y ’ s compliance with the O rdinance wa s r e l e v ant to the question of the reasonablene s s of the City’s actions, see i d. at 653 (holding that the “ultimate test of r easonableness” was met by “the City’s adherence to its ordinances and procedures” prior to aba t e m e n t); s ee a lso id. at 654 n.18 (“[A] s howing of

u n reasonableness in the f a ce of the City’s adherence to its ordinance i s a ‘laborious task indeed.’” (quoting Soldal , 506 U.S. at 71)). The incorrect instruction on the due p rocess claim further implicated the jury’s consideration of RBIII’s Fourth Amendment c laim because “ an abatement carried out in accordance with p rocedural due process is reasonable in the absence of a ny f

actors t hat outweigh governmental interests.” Sa muels v. Meriwether , 94 F.3d 1 1 6 3 , 1168 (8th Cir. 1996). Indeed, factors favoring the plaintiff will generally not outweigh the government’s interest when it effects a procedurally adequate summary deprivation. F reeman , 242 F.3d at 652; see also Kinnison , 480 F. App’x at 2 80-281 (“A reasonableness d e termination involves a balancing of all relevant factors, and for Fourth Amendment purposes generally requires no more of government officials than that of due process of law. Both constitutional provisions recognize a n exigency e xception, a nd, t h us, lead to no practical distinction in the summary a ction context.” (internal alter a tions, citations a nd question marks omitted)). B ecause t h e d u e process jury

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instructions gave t h e erroneous impression that the reasonableness determination d epended entirely on whether an emergency actually existed and because the result of the due process inquiry affects the outcome of the Fourth Amendment claim, we must va c ate the district court’s j udgment on RBIII’s Fourth Amendment claim as well. IV. The City argues that, when viewed against the p roper sta n d a r d s for Fou r th and Fourteenth Amendment liability, the e vidence presented at trial entitled it to judgment as a m a tter of l aw. It i s apparent f rom the erroneous jury instructions, however, that the district court misapprehended th e f a c tors governing the outcome of the claims at issue w hen it ruled on the City’s motion for judgment as a matter of l a w . G i v e n the district court’s greater familiarity with the factual record i n this case, we find it appropriate t o remand the case for reconsideration of t h e C ity’s motion for judgment as a matter of law not inconsistent with this opinion and for furthe r p r o c e e di ngs as necessary. See, e.g. , Olin Corp. v. C

ertain Underwriters at L loyd’s L o ndon , 468 F.3d 120, 1 31-32 (2d Cir. 2006) (vacating judgment due t o erroneous jury instructions and remanding for reconsideration of moti o n f o r j u d gment as a matter of law). Because we vacate the trial c ourt’s judgment against the City, we need not consider t he other issues raised in the City’s appeal. See Septimus , 399 F.3d at 612.

VACATED AND REMANDED

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