IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 of San Antonio (the

“City”) and RBIII, L.P. (“RBIII”). On January 10, 2008, the City demolished a

dilapidated building (the “Structure”) located at 814 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 razing the Structure. RBIII

filed suit against the City, asserting a host of state and federal claims. The

district court granted summary judgment for the City on all claims except a

Fourteenth Amendment procedural due process claim and aFourth Amendment

unreasonable search and seizure claim. Those claims were tried to a jury, which

returned a verdict in favor of RBIII. The City appeals.

United States Court of Appeals

Fifth Circuit

F I L E D

April 23, 2013

Lyle W. Cayce

Clerk

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I.

A.

On December 27, 2007, Irma Ybarra, a code enforcement officer of the

City, drove by the Property in response to a neighbor’s complaint that the

Structure was unsecured and dilapidated. Ybarra conducted a more thorough

inspection on December 28, 2007. She found that, in addition to being vacant

and unsecured, the Structure smelled of mold and exhibited fire and water

damage, including holes in the ceilings, walls, and floors. Ybarra also found

evidence of unauthorized people coming and going from the Structure, including

trash, graffiti, missing fixtures, and an unhinged gate. 

Based on her inspection, Ybarra determined that the Structure had

become a harbor for unauthorized persons, was in danger of collapsing, and was

too unstable to attempt to secure. She requested that a building inspector

review the Structure. Ramiro Carillo, a certified building inspector working for

the City, examined the Structure on December 28, the same day Ybarra

conducted her inspection. He concluded that the foundation, walls, and roof

components were in extremely poor condition and that the Structure constituted

an “imminent threat to life, safety, and/or property, requiring immediate

demolition.” He also concluded that “no other abatement procedure was

reasonably available under the circumstances.”

Carillo presented his report and photographs of the Structure to Roderick

Sanchez, the director of the City’s Planning and Development Services

Department, and recommended the Structure for emergency demolition. After

reviewing the report and photographs, Sanchez concurred in Carillo’s

recommendation. David Garza, the director of the City’s Housing and

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Neighborhood Services Department, also concurred in the recommendation after

reviewing photographs of the Structure and conferring with a member of his

staff who had visited the Property. On January 3, 2008, Carillo and Garza each

signed affidavits stating that it was his determination that the Structure

“presented a clear and imminent threat to life, safety, and/or property

necessitating an immediate demolition” and that “no other abatement procedure

was reasonably available under these circumstances.” Carillo and Garza reexecuted identical affidavits on January 7, 2008.

Ybarra obtained an environmental survey from the City’s Environmental

Services Department and also notified the City’s Historic Preservation Office of

the planned demolition. She arranged to have the gas and electricity service

cut-off. She also searched the City’s permit records and determined that no

permits had been obtained to repair the Structure. She revisited the Property

on January 9, 2008 to confirm that no repair work had been done. The Structure

was demolished on January 10, 2008.1 The next day, the City sent a notice to

RBIII informing it that the City had demolished the Structure as an “Emergency

Case.” It is undisputed that the City did not provide notice to RBIII of the

pending demolition of the Structure at any time between December 28 and

January 10. 

1 The City presented evidence that the reason thirteen days passed between the initial

inspection and the demolition was that the City needed to ensure that the demolition could

proceed safely while operating with only a “skeleton crew” during the holiday season. RBIII

questioned the City’s explanation and suggested that the City could have demolished the

Structure sooner, but did not argue that the City delayed the demolition intentionally or in

bad faith.

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B.

RBIII filed suit against the City and Ibarra’s supervisor, Reyes

Hernandez, in the 228th Judicial District Court of Bexar County on January 28,

2009 alleging claims under local, state, and federal law.2 The City filed a notice

of removal to federal court. The district court granted summary judgment in

favor of Hernandez on all of RBIII’s claims. The district court granted summary

judgment in favor of the City on all claims except for two: (1) that the City

violated RBIII’s Fourteenth Amendment right to procedural due process by

demolishing the Structure without 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 that the City had

complied with San Antonio Code of Ordinances § 6-175 (the “Ordinance”), which

governed summary demolitions. The Ordinance, which has since been repealed,

provided that the City could demolish dangerous structures without prior notice

to the owner when “due to one or more structural conditions threatening the

structural integrity of a building, there is a clear and imminent danger to the

life, safety or property of any person.” Two of three designated officials,

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 two officials find that “no other abatement procedure is

reasonably available except demolition.” The demolition had to occur within 72

hours of when an official viewed the building and the owner of the building had

2 RBIII brought its federal constitutional claims pursuant to 42 U.S.C. § 1983, but the

City has not raised a defense based on Monell v. Department of Social Services of the City of

New York, 436 U.S. 658 (1978) in its appellate briefing. For the reasons set forth in Kinnison

v. City of San Antonio, 480 F. App’x 271, 274-76 (5th Cir. 2012), we hold that the City has

waived any Monell defense with respect to this appeal.

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to be notified after the demolition.3 

C.

The district court held a jury trial on RBIII’s Fourth and Fourteenth

Amendment claims from March 28 to March 30, 2011. The jury found in favor

of RBIII on both claims and awarded $27,500 in damages. On appeal, the City

argues, among other things, that the district court’s jury instructions did not

accurately reflect the applicable law and that, under the correct legal standards,

it was entitled to judgment as a matter of law. 

II.

A.

While theFourteenth Amendment’s Due Process Clause generally requires

that the State provide an opportunity to be heard before it takes property,

predeprivation notice is not always required. Gilbert v. Homar, 520 U.S. 924,

930 (1997). In particular, where the State acts to abate an emergent threat to

public safety, postdeprivation process satisfies the Constitution’s procedural due

process requirement. See Hodel v. Va. Surface Mining & Reclamation Ass’n,

Inc., 452 U.S. 264, 301-03 (1981); see also Gilbert, 520 U.S. at 930 (“[W]here a

State must act quickly, or where it would be impractical to provide

predeprivation process, postdeprivation process satisfies the requirements of the

Due Process Clause.”). Determining whether a pre-notice deprivation of

property comports with procedural due process therefore requires an evaluation

of (1) the State’s determination that there existed an emergency situation

necessitating quick action and (2) the adequacy of postdeprivation process. 

Elsmere Park Club, L.P. v. Town of Elsmere, 542 F.3d 412, 417-420 (3d Cir.

3 For the full text of the Ordinance, see Kinnison, 480 F. App’x at 272-73.

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2008); Catanzaro v. Weiden, 188 F.3d 56, 61-62 (2d Cir. 1999).

How the fact-finder approaches the first issue depends on whether the

State acted pursuant to a valid summary-action ordinance. If it did, then the

State’s determination that it was faced with an emergency requiring a summary

abatement is entitled to deference. Catanzaro, 188 F.3d at 62-63; see also

Kinnison v. City of San Antonio, 480 F. App’x 271, 277 (5th Cir. 2012); Elsmere

Park Club, 542 F.3d at 418. In such cases, the relevant inquiry is not whether

an emergency actually existed, but whether the State acted arbitrarily or

otherwise abused its discretion in concluding that there was an emergency

requiring summary action. See Patel v. Midland Mem. Hosp. & Med. Ctr., 298

F.3d 333, 341 (5th Cir. 2002) (holding that the “key question” in a pre-notice

deprivation case is not whether there “was actually a danger” but whether the

State had reasonable grounds for believing that a danger existed requiring

summary action); Elsmere Park Club, 542 F.3d at 416, 420 (holding that district

court erred in finding procedural due process violation solely on the basis that

“the Town failed to present sufficient evidence of exigent circumstances”

(internal quotation marks omitted)). This deference derives from the concern

that “subjecting a decision to invoke an emergency procedure to an exacting

hindsight analysis, where every mistake, even if made in good faith, becomes a

constitutional violation, [would] encourage delay and thereby potentially

increase the public’s exposure to dangerous conditions.” Catanzaro, 188 F.3d at

63.

With respect to the second issue—the adequacy of postdeprivation

process—RBIII has not pled or otherwise argued that the postdeprivation

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remedies available to it were procedurally inadequate.4 While RBIII’s failure to

do so is not fatal to its procedural due process claim,5

it does limit that claim to

an attack on the City’s determination that the Structure 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 the State

be reasonable. New Jersey v. T.L.O., 469 U.S. 325, 340 (1985) (“The fundamental

command of the Fourth Amendment is that searches and seizures be reasonable

. . . .”). “[T]he Fourth Amendment reasonableness of a seizure and demolition

of nuisance property will ordinarily be established when the substantive and

procedural safeguards inherent in state and municipal property standards

4 At trial, neither party presented evidence on the issue of postdeprivation remedies.

In its brief on appeal, RBIII argues that although it pled all available state and local remedies

in its original complaint, the district court granted summary judgment in favor of the City on

those claims. RBIII also argues that it could not sue the City for inverse condemnation

because the district court held that the Structure was a nuisance and granted summary

judgment to the City on RBIII’s takings claims. Nowhere, however, does RBIII claim that its

postdeprivation remedies were procedurally inadequate. In particular, even if RBIII is correct

that it would have lost an inverse condemnation suit due to the district court’s nuisance

finding, RBIII does not explain why it follows that inverse condemnation is a procedurally

inadequate postdeprivation remedy. The Due Process Clause entitles RBIII to an opportunity

to heard, not a successful outcome.

5 As the panel in Kinnison correctly noted, where a plaintiff “complains of a property

deprivation effected by City employees acting with authorization and pursuant to procedures

enacted by the City,” there is no requirement “to plead and prove the inadequacy of state-law

remedies in order to bring a procedural due process claim.” 480 F. App’x at 279 n.14; see also

Zinermon v. Burch, 494 U.S. 113, 117, 138-39 (1990) (holding that plaintiff was not required

to plead inadequate postdeprivation remedies where complained of conduct by public officials

was not “random and unauthorized” but undertaken pursuant to statutorily delegated

authority); Mitchell v. Fankhauser, 375 F.3d 477, 483-84 (6th Cir. 2004) (holding that where

plaintiff was deprived of property pursuant to established state procedures and not by the

random or unauthorized acts of state officials, plaintiff was not required to plead inadequate

postdeprivation remedies in order to bring a procedural due process claim).

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ordinances have been fulfilled.” Freeman v. City of Dallas, 242 F.3d 642, 654

n.17 (5th Cir. 2001) (en banc). Because the Fourth Amendment generally

requires no more than due process of law in summary abatement cases, the

outcome of a Fourth Amendment claim depends on whether the seizure complied

with due process. See Flatford v. City of Monroe, 17 F.3d 162, 170 (6th Cir. 1994)

(citing Soldal v. Cook Cnty., Ill., 506 U.S. 56, 71 (1992)); see also Kinnison, 480

F. App’x at 281 (finding “no reason to depart from the general practice of

tethering the outcome of the Fourth Amendmentinquiry to whether the property

deprivation offended due process”).

III.

A.

On appeal, the City argues that the district court provided erroneous

instructions to the jury. With respect to the due process claim, the instructions

read in relevant part:

Under the Fourteenth Amendment’s Procedural Due Process

Clause, a property owner is entitled to notice and/or a hearing

before being deprived of its property. In this case, the parties do not

dispute that the City did not provide notice to RBIII before

demolition. 

In some cases, property may be seized without providing prior

notice. The emergency situations in which it is considered

reasonable to proceed without giving prior notice are generally

limited to situations in which there is an immediate danger to

public. You must consider all the facts presented to you in order to

determine whether the circumstances in the instant case excused

the City from providing notice to RBIII before demolishing the

property.

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The court’s instructions on the Fourth Amendment claim, in relevant part, read

as follows:

Assessing the reasonableness of the seizure involves a careful

balancing of the nature and quality of the intrusion on the

individual’sFourth Amendment interests againstthe countervailing

governmental interest at stake. It entails weighing a number of

factors, including the danger posed by a building to public safety. 

The private interests at stake include the right to personal property. 

Here, the City argues that the immediate demolition of RBIII’s

property was necessary and reasonable due to the condition of the

structure. Considering all facts presented to you, you must weigh

the public and private interests at stake, and determine whether

RBIII has proved by a preponderance of the evidence that the City’s

destruction of the property was unreasonable.

The City argues, as it did in the district court, that the jury charge should have

stated that the City’s decision to invoke its emergency powers under the

Ordinance was entitled to deference and that the City’s compliance with the

Ordinance was proof of the reasonableness of its actions.

B.

“We review jury instructions for an abuse of discretion.” Carrizales v.

State Farm Lloyds, 518 F.3d 343, 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. 2010) (“In reviewing the jury charge we ask whether

the jury charge properly stated the applicable law and, if not, whether the

challenged instruction affected the outcome of the case.”).

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C.

RBIII’s procedural due process claim did not challenge the Ordinance

itself, but rather the City’s application of the Ordinance to the particular

circumstances of this case.6 Because the City acted pursuant to the Ordinance,

its decision to demolish the Structure on an emergency basis was entitled to

deference and 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

that where plaintiff does not challenge the validity of emergency demolition

procedure, “there is no constitutional violation unless the decision to invoke the

emergency procedure amounts to an abuse of the constitutionally afforded

discretion”); see also Kinnison, 480 F. App’x at 278 (holding that demolition

without notice “may be excused for 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 adequate

post-deprivation process exists, an official reasonably believing on the basis of

competent evidence that there is an emergency does not effect a constitutional

violation by ordering a building demolition without notice or a hearing.”);

Elsmere Park Club, 542 F.3d at 418 (“Thus, in analyzing the Town’s decision to

condemn summarily the apartments, we look to whether there was competent

6 RBIII did argue in the district court that the ordinance was “unconstitutionally

vague,” but only in connection with its equal protection and substantive due process claims.

Because the City repealed the Ordinance after RBIII filed suit, the district court dismissed

RBIII’s vagueness claim as moot. RBIII did not thereafter seek a ruling from the district court

on the constitutionality of the Ordinance and it has not cross-appealed the district court’s

order dismissing its vagueness claim. Given those circumstances, we have no hesitation in

following the approach of the Kinnison panel, which, faced with substantially the same facts,

held that the plaintiff’s procedural due process claim “challenged only the manner in which

the City applied the Ordinance in his specific case.” See Kinnison, 480 F. App’x at 277 & n.9.

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evidence supporting the reasonable belief that the mold situation presented an

emergency, and to whether the Town’s actions were otherwise arbitrary or an

abuse of discretion.” (internal quotation marks omitted)). 

The district court, however, instructed the jury that the City was excused

from providing notice to RBIII only if there was “an immediate danger to the

public,” making no mention of the City’s compliance with the Ordinance or the

discretion resulting therefrom. By doing so, the court improperly cast the

central factual dispute as whether or not the Structure posed an immediate

danger to the public, when the issue should have been whether the City acted

arbitrarily or abused its discretion in determining that the Structure presented

an immediate danger. See Patel, 298 F.3d at 341; see also WWBITV, Inc., 589

F.3d at 51 (“Whether the official abused his discretion or acted arbitrarily in

concluding that a genuine emergency exists is a factual issue . . . .”). Because

this error in the instructions 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 proceedings. See Septimus v. Univ. of Houston,

399 F.3d 601, 608 (5th Cir. 2005) (vacating verdict where erroneous instructions

misled the jury as to “the ultimate question in the case”); see also Carrizales, 518

F.3d at 351 (remanding for new trial where district court erroneously instructed

jury on factual finding necessary for liability).

This error in the jury instructions affected not only RBIII’s due process

claim, but also its Fourth Amendment claim. While the instructions on the

Fourth Amendment claim properly focused on the reasonableness of the City’s

decision to demolish the Structure without notice, the court’s instruction on the

due process claim would have led the jury to believe that such a decision can

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only be reasonable when there is actually “an immediate danger to public.” As

such, the instructions (1) improperly shifted the jury’s focus from the

reasonableness of the City’s determination that the Structure posed a public

emergency to the accuracy of that determination, cf. Freeman, 242 F.3d at 654

(holding that in a summary abatement case “Fourth Amendment reasonableness

means non-arbitrariness”), and (2) failed to inform the jury that the City’s

compliance with the Ordinance was relevant to the question of the

reasonableness of the City’s actions, see id. at 653 (holding that the “ultimate

test of reasonableness” was met by “the City’s adherence to its ordinances and

procedures” prior to abatement); see also id. at 654 n.18 (“[A] showing of

unreasonableness in the face of the City’s adherence to its ordinance is a

‘laborious task indeed.’” (quoting Soldal, 506 U.S. at 71)). 

The incorrect instruction on the due process claim further implicated the

jury’s consideration of RBIII’s Fourth Amendment claim because “an abatement

carried out in accordance with procedural due process is reasonable in the

absence of any factors that outweigh governmental interests.” Samuels v.

Meriwether, 94 F.3d 1163, 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. Freeman, 242 F.3d at 652; see also

Kinnison, 480 F. App’x at 280-281 (“A reasonableness determination 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 an exigency exception, and, thus, lead to no

practical distinction in the summary action context.” (internal alterations, 

citations and question marks omitted)). Because the due process jury

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instructions gave the erroneous impression that the reasonableness

determination depended 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 vacate the district court’s judgment on RBIII’s

Fourth Amendment claim as well.

IV.

The City argues that, when viewed against the proper standards for

Fourth and Fourteenth Amendment liability, the evidence presented at trial

entitled it to judgment as a matter of law. It is apparent from the erroneous jury

instructions, however, that the district court misapprehended the factors

governing the outcome of the claims at issue when it ruled on the City’s motion

for judgment as a matter of law. Given the district court’s greater familiarity

with the factual record in this case, we find it appropriate to remand the case for

reconsideration of the City’s motion for judgment as a matter of law not

inconsistent with this opinion and for further proceedings as necessary. See, e.g.,

Olin Corp. v. Certain Underwriters at Lloyd’s London, 468 F.3d 120, 131-32 (2d

Cir. 2006) (vacating judgment due to erroneous jury instructions and remanding

for reconsideration of motion for judgment as a matter of law). Because we

vacate the trial court’s judgment against the City, we need not consider the other

issues raised in the City’s appeal. See Septimus, 399 F.3d at 612.

VACATED AND REMANDED

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