NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD SCOTT ELSMORE,

Plaintiff

- Appellant,

v.

DARIO A

. CRUZ, in his personal capacity; DONALD R

. WALKER, in his personal capacity; BRIAN S

. GONSALVES, in his personal capacity; GREGORY A

. PECK, in his personal capacity; RYAN B

. SHACKLEFORD, in his personal capacity; STUART J

. BUCHANAN; LISA CRAVEN; DJ ’ S AUTO BODY AND TOWING,

Defendants

- Appellees. No. 16

- 56429

D.C. No. 5:15

- cv

- 0 1556

- RGK

- MRW

MEMORANDUM *

Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding

Submitted June 6, 2018 ** Pasadena, California

Before: LIPEZ, *** NGUYEN, and OWENS, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Kermit V

. Lipez, United States Circuit Judge for the 

# FILED

JUL 25 2018

MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

Richard Elsmore appeals the district court’s order dismissing his first

amended complaint. We have jurisdiction under 28 U.S.C. § 1291, and we affirm

in part and reverse in part.

1. Elsmore alleges that Officer Dario Cruz’s tow of his unregistered vehicle

from his private driveway violated the Fourth Amendment. “The impoundment of

an automobile is a seizure within the meaning of the Fourth Amendment.”

Miranda v. City of Cornelius , 429 F.3d 858, 862 (9th Cir. 2005). “An officer

cannot reasonably order an impoundment in situations where the location of the

vehicle does not create any need for the police to protect the vehicle or to avoid a

hazard to other drivers.” Id. at 866 (emphasis added). 1 Because Elsmore’s veh icle,

which was parked on his property, posed no hazard to other drivers at the time of

First Circuit, sitting by designation.

1 The community caretaking doctrine allows for the towing of a vehicle that “is parked in the path of traffic, blocking a driveway, obstructing a fire lane or appears abandoned.” Clement v. City of Glendale , 518 F.3d 1090, 1094 (9 t h Cir. 2008). A tow may also be appropriate where it “provides security for the payment of [a] fine,” but only where a vehicle has “no current registration stickers and police can’t be sure that the owner won’t move or hide the vehicle , rather than pay the fine for illegal parki ng .” Id. at 1094

– 95 (emphasis added). This is not an illegal public parking case. Here, according to the allegations in Elsmore ’ s complaint, the vehicle was located at a private residence and the officer knew the vehicle owner ’ s identity. Standing alone, these allegations undermine the fine

avoidance justification for towing the vehicle. See id. at 1095 (finding that knowledge of the vehicle owner ’ s address minimized the likelihood “ that the car owner would abscond without paying [a] ticke t ” ). The district court, however, is free to reexamine qualified immunity at the summary judgment stage.3

the tow, Cruz is not entitled to qualified immunity. Therefore, we reverse the

district court’s dismissal of Elsmore’s Fourth Amendment claim.

2. Elsmore alleges that the post

- deprivation hearing violated the Due

Process Clause. We disagree. According to the complaint, Elsmore had the

“opportunity to be heard at a meaningful time and in a meaningful manner.”

Yagman v. Garcetti , 852 F.3d 859, 864 (9th Cir. 2017) (quo ting City of Los

Angeles v. David , 538 U.S. 715, 717 (2003)). In any event, there is no clearly

established law that requires post

- tow hearings to be interruption

- free. We

therefore affirm the district court’s dismissal of this claim on the ground of

qua lified immunity.

AFFIRMED IN PART AND REVERSED IN PART.Elsmore v. Cruz , No. 16

- 56429

OWENS, Circuit Judge, concurring in part and dissenting in part:

While I join in affirming the dismissal of Elsmore’s Fourteenth Amendment

claim, I respectfully dissent from the revival of his Fourth Amendment claim. In

my view, a reasonable officer could have perceived our statement in Clement v.

City of Glendale , 518 F.3d 1090, 1094

- 95 (9th Cir. 2008), that a “ tow may

. . . be

appropriate where there are no current registration stick ers and police can’ t be sure

that the owner won’ t move or hide the vehicle, rather than pa y the fine for illegal

parking,” as having authorized the tow of Elsmore’s car. And because existing

precedent had not placed the tow’s purported un constitutio nality “beyond debate,”

White v. Pauly , 137 S. Ct. 548, 551 (2017) (per curiam) ( citation omitted), the

defendant officers are entitled to qualified immunity. S ee also Kisela v. Hughes

, 138 S. Ct. 1148, 1152 (2018) (per curiam) (“Specificity is especially important in

the Fourth Amendment context, where the Court has recognized that it is

sometimes difficult for an officer to determine how the relevant legal doctrine

. . . will apply to the factual situation the officer confronts.” ( alteration and citation

omitted)). 

# FILED

JUL 25 2018

MOLLY C. DWYER, CLER K

U.S. COURT OF APPEAL S