The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.
MEMORANDUM OPINION AND ORDER
In this Section 1983 action against the City of New York and New York City Police Officer Jacquieli L. Harper, Plaintiff Menachem Ezagui alleges that defendants violated his due process rights under the Fourth, Fifth, and Fourteenth Amendments of the United States Constitution in connection with seizing and retaining as "arrest evidence" his vehicle and the personal property contained within it. (Cmplt. ¶ 1) Plaintiff contends that Defendants failed to provide him with proper notice and the opportunity to be heard regarding the seizure and retention of his vehicle and personal property, in violation of federal constitutional law and the procedural safeguards laid out in Krimstock v. Kelly, 506 F. Supp. 2d 249 (S.D.N.Y. 2007).*fn1 (Cmplt. ¶¶ 19, 20, 27)
On October 29, 2009, Defendants moved to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(c). (Docket No. 20) On November 26, 2009, Plaintiff filed his opposition and a cross-motion for summary judgment. (Docket No. 11) For the reasons stated below, Defendants' motion to dismiss is granted as to the City of New York but otherwise denied, and Plaintiff's cross-motion for summary judgment is granted as to Defendant Harper's liability but otherwise denied.
The following facts are not in dispute: Plaintiff is the sole owner of a 2002 GMC Envoy, VIN # 1GKDT13S422467896. (Cmplt. ¶ 7; Pltf. Rule 56.1 Stat. ¶ 1, Ex. A)*fn2 On April 15, 2008, NYPD Officer Harper searched this vehicle and seized it and its contents pursuant to a search warrant issued earlier that day by a New York state judge. (Pltf. Rule 56.1 Stat. ¶ 3) The warrant states "that there is probable cause for believing that evidence related to [a] crime, including but not limited to a night stick, blood, fibers, hair samples, tissue, forensic and serology evidence as well as evidence concerning the identification of the individual(s) involved in said crime will be found" within Plaintiff's vehicle. (Pltf. Rule 56.1 Stat. ¶ 4; Pltf. Ex. B)
Plaintiff was not notified at the time of the seizure that his vehicle was being confiscated by the NYPD, nor did the authorities inform Plaintiff how to challenge the retention of his vehicle and the personal property it contained.*fn3 (Cmplt. ¶ 7; Pltf. Rule 56.1 Stat. ¶¶ 7-8) The following day, April 16, 2009, Plaintiff participated in a lineup as part of a criminal investigation; Plaintiff was not identified and was released from custody. (Cmplt. ¶ 10; Pltf. Rule 56.1 Stat. ¶¶ 9-10; Def. Reply Br. at 6). No criminal charges were ever brought against Plaintiff "relating to the matter for which plaintiff's vehicle was confiscated." (Def. Rule 56.1 Counter-Stat. ¶ 11; Cmplt. ¶ 10; Pltf. Rule 56.1 Stat. ¶ 11)
On February 18, 2009, Plaintiff's recently retained counsel made a written demand on the Kings County District Attorney's Office for the return of Plaintiff's vehicle and personal property.*fn4 (Cmplt. ¶ 11; Pltf. Rule 56.1 Stat. ¶ 12; Pltf. Ex. F) On February 25, 2009, the District Attorney's office notified Plaintiff's counsel that it planned to retain Plaintiff's vehicle as evidence in a criminal case. (Cmplt. ¶ 12; Pltf. Rule 56.1 Stat. ¶ 13; Pltf. Ex. G) That same day, pursuant to an ex parte application by the District Attorney's office, New York Supreme Court Justice Martin P. Murphy found that the District Attorney had "made a sufficient showing as required by the Krimstock Order," and authorized the continued retention of Plaintiff's vehicle "as evidence by the New York City Police Department in [connection with a prosecution of Yitzchak Shuchat] until the conclusion of the criminal case and any possible appeal." (Cmplt. ¶ 12; Pltf. Rule 56.1 Stat. ¶ 14; Pltf. Ex. H) This order did not address in any fashion Plaintiff's demands for return of his personal property. Accordingly, on February 27, 2009, Plaintiff sent a second written demand to the District Attorney's office seeking return of the personal property contained in Plaintiff's vehicle. (Cmplt. ¶ 13; Pltf. Rule 56.1 Stat. ¶ 15; Pltf. Ex. I) Plaintiff received no response to this second demand. (Cmplt. ¶ 13; Pltf. Rule 56.1 Stat. ¶16)
On March 4, 2009, Plaintiff moved for an order to vacate or amend Justice Murphy's retention order. (Cmplt. ¶ 14; Pltf. Rule 56.1 Stat. ¶17; Pltf. Ex. J) On June 5, 2009, Justice Murphy issued a second retention order finding that the "People have made a sufficient showing . . . that the vehicle and its contents are needed as evidence for the continuing investigation and possible trial in this case."*fn5 (Cmplt. ¶ 15; Pltf. Rule 56.1 Stat. ¶ 18; Pltf. Ex. K) Justice Murphy's second retention order does not indicate whether a hearing was held on the matter, what evidence the court considered, or what procedural steps were followed in determining whether retention was appropriate, nor does the order discuss the requirements of the Krimstock line of cases. The only rationale given for continued retention is that "since Defendant [Shuchat] has not yet raised a defense in this case, the People must retain the vehicle and its contents so that . . . [any defenses raised in the future can be investigated or rebutted at trial and so that] the Defendant has the opportunity to evaluate whether the vehicle and its contents contain any exculpatory evidence." (Pltf. Ex. K)
Plaintiff's vehicle and personal property continue to be held by the NYPD property clerk, more than two years after they were seized. (Cmplt. ¶ 16; Def. Rule 56.1 Stat. ¶ 20)
The Fourteenth Amendment to the United States Constitution guarantees that no person shall be deprived "of life, liberty or property, without due process of law." U.S. Const. amend. XIV § 1. "The touchstone of due process, of course, is 'the requirement that a person in jeopardy of serious loss (be given) notice of the case against him and opportunity to meet it.'" Spinelli v. City of New York, 579 F.3d 160, 169 (2d Cir. 2009) (quoting Mathews v. Eldridge, 424 U.S. 319, 348-49 (1976)). "It is equally fundamental that the right to notice and an opportunity to be heard 'must be granted at a meaningful time and in a meaningful manner.'" Fuentes v. Shevin, 407 U.S. 67, 80 (1983) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). "Notice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party." Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 800 (1983). These requirements are not fixed, however, as "due process is flexible and calls for such procedural protections as the particular situation demands." Eldridge, 425 U.S. at 334.
"To determine whether a plaintiff was deprived of property without due process of law in violation of the Fourteenth Amendment," courts (1) "identify the property interest involved," and (2) "determine whether the plaintiff received constitutionally adequate process in the course of the deprivation." O'Connor v. Pierson, 426 F.3d 187, 196 (2d Cir. 2005) (citingHarhay v. Town of Ellington Bd. of Educ., 323 F.3d 206, 212 (2d Cir. 2003)). Courts analyze procedural due process claims under the three-factor balancing test prescribed in Eldridge, 424 U.S. at 335. This test weighs: "'(1) the private interest at stake; (2) the risk of an erroneous deprivation of that interest through the procedures used and the probable value (if any) of alternative procedures; [and] (3) the government's interest, including the possible burdens of alternative procedures.'" Kuck v. Danaher, 600 F.3d 159, 163 (2d Cir. 2010) (quoting O'Connor v. Pierson, 426 F.3d 187, 197 (2d Cir. 2005)).
The "City of New York has authorized its police department to seize any motor vehicle that is 'suspected of having been used as a means of committing crime or employed in aid or furtherance of crime,' N.Y. City Admin. Code § 14-140(b), as the first step toward obtaining title to the vehicle through civil forfeiture." Ford Motor Credit Co. v. N.Y. City Police Dep't, 503 F.3d 186, 188 (2d Cir. 2007) (quoting Krimstock v. Kelly, 306 F.3d 40, 44 (2d Cir. 2002)). Through a series of decisions in Krimstock v. Kelly, courts in this Circuit have articulated specific requirements related to the process due the owner of a vehicle seized pursuant to an ongoing criminal investigation.
Krimstock involved a Section 1983 challenge to the constitutionality of New York City's forfeiture statute, N.Y. City Admin. Code § 14-140. See Krimstock v. Kelly, 464 F.3d 246, 248 (2d Cir. 2006). The scope of the Krimstock litigation, however, expanded to include the NYPD's retention of a vehicle for purposes of arrest or trial evidence. Krimstock, 464 F.3d at 249. Krimstock involved "no challenge to an underlying criminal proceeding or the procedural rights due the criminal defendant. Rather, it involve[d] the deprivation of property pending a criminal proceeding[, including the property of] an innocent owner who is not party to the criminal proceeding." Id. at 254. The Second Circuit held that "[t]he balance of factors relevant under the Matthews v. Eldridge test weighs in favor of having review by a neutral fact-finder of a prosecutor's decision to retain a vehicle as potential evidence -- although no adversarial hearing is required." Id. at 255. In so holding, the Court noted that "given the importance of a vehicle to an individual's ability to work and conduct the affairs of life . . ., and the serious harm thus resulting from the undue retention of a vehicle by the government, some immediate judicial review of the retention is required." Id. The Circuit remanded the case to the district court for a determination of what procedures should apply in connection with the required judicial review.*fn6 Id.
On remand, Judge Baer laid out the procedures by which a district attorney may seek retention of a vehicle seized as evidence in connection with an ongoing criminal proceeding. Critical to those procedures is the provision of notice to the vehicle's owner of the owner's right to challenge the seizure, and an opportunity to be heard on this issue:
Notice of the right to a hearing will be provided at the time of seizure by attaching to the voucher already provided to the person from whom a vehicle is seized a notice, in English and Spanish, as set forth below. A copy of which notice will also be sent by mail to the registered and/or titled owner of the vehicle within five business days of seizure. The notice will appear in type at least as large as the largest entry elsewhere on the form, but in no event smaller than 8-point type, and will read as follows:
NOTICE OF RIGHT TO A RETENTION HEARING
"You are entitled to a hearing to determine whether it is valid for the Property Clerk to retain the vehicle seized in connection with an arrest. Please complete this form, make and keep a copy for yourself, and deliver or mail the completed original form to NYPD Legal Bureau, 2 Lafayette Street, 5th Floor, New York, New York 10007, Attention: Vehicle Seizure Unit. When the form is received, you will be notified of the date, time and place of your hearing, which will be held within 10 days of receipt of this form. The NYPD Legal Bureau will do its best to accommodate your schedule by having the hearing on a date when you are available. Please indicate in the space provided below the date(s), if any, within the next four weeks following receipt of this form, when you are NOT available to attend a hearing. The hearing will be held at the Office of Administrative Trials and Hearings, located at 40 Rector Street, 6th Floor, New York, New York 10006, telephone number (212) 442-4000. The hearing will provide you with an opportunity to be heard, either yourself or through your attorney, with respect to three issues: (1) whether probable cause existed for the arrest of the vehicle operator; (2) whether it is likely that the City will prevail in an action to forfeit the vehicle; and (3) whether it is necessary that the vehicle remain impounded in order to ensure its availability for a judgment of forfeiture. The burden of proof by a preponderance of the evidence as to each of these issues will be on the Police Department, and the judge may consider such hearsay and other evidence as the judge may consider reliable. If the Police Department proof is insufficient as to any of these issues, the vehicle will be returned to the claimant within 10 days. Additionally, a claimant who is an owner may present an "innocent owner" defense, namely that in some instances, a vehicle may not be forfeited if its owner did not know or have reason to know that the vehicle would be used in the commission of a crime. Only one person may appear as claimant, and if more than one of these forms is received by the Police Department, priority will go to the registered owner of the vehicle.
However, such hearing shall not be held if there is an intervening order by a Judge of the Criminal Court or a Justice of the Supreme Court that the vehicle is to be held as evidence in a criminal proceeding (a "Retention Order"). If a Retention Order is issued, you have the right to move to vacate or modify that Order in the Court from which it was issued."
Krimstock v. Kelly, 99 Civ. 12041 (HB), 2007 U.S. Dist. LEXIS 82612 (S.D.N.Y. October 1, 2007) (emphasis added).
Judge Baer ruled that district attorneys may seek retention orders ex parte, but a prosecutor's decision to retain a vehicle as evidence must be subject to the review of a "neutral-fact finder." Krimstock v. Kelly, 506 F. Supp. 2d 249, 254 (S.D.N.Y. 2007). The application for a retention order "must affirm that there are reasons for the retention, what they are, and that they relate to the contested issue in the underlying criminal proceeding," and "[s]econdly, . . . the [prosecutor] must affirm that no other means besides impoundment (such as more time-limited photographing or forensic testing) will suffice to preserve ...