Morley's Auto Body v. Hunter ( 1995 )


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  •                    United States Court of Appeals,
    
                               Eleventh Circuit.
    
                                 No. 94-3158.
    
     MORLEY'S AUTO BODY, INC., a Florida Corporation, d/b/a Morley's
    Towing; Morris Solow; David Solow, d/b/a Dave's Towing; Kenneth
    Solow, Plaintiffs-Appellees, Cross-Appellants,
    
                                      v.
    
    Don HUNTER, individually, and in his official capacity as Sheriff
    of Collier County;    L. Wayne Graham, individually, and in his
    capacity as a Captain in the Collier County Sheriff's Office,
    Defendants-Appellants, Cross-Appellees,
    
     Collier County;   Collier County Sheriff's Office;   John Doe, 1-
    10, Defendants.
    
                                Dec. 18, 1995.
    
    Appeal from the United States District Court for the Middle
    District of Florida. (No. 92-271-Civ-Ftm-23D), George T. Swartz,
    Magistrate Judge.
    
    Before ANDERSON and CARNES, Circuit Judges, and Owens* District
    Judge.
    
         CARNES, Circuit Judge:
    
         Collier County Sheriff Don Hunter and Captain L. Wayne Graham
    
    appeal from a judgment entered against them in their official
    
    capacities. That judgment followed a jury trial and was entered in
    
    favor of plaintiffs Morley's Auto Body, Inc., and David Solow,
    
    d/b/a Dave's Towing. The main question presented in this 42 U.S.C.
    
    § 1983 case is whether two wrecker service companies, and their
    
    owners, had a constitutionally protected property interest in
    
    remaining on a wrecker rotation call list maintained by the Collier
    
    County Sheriff's Office.    Because such property interests must be
    
    determined by reference to state law, and because we can find no
    
         *
          Honorable Wilbur D. Owens, U.S. District Judge for the
    Middle District of Georgia, sitting by designation.
    Florida law to support their claim of entitlement, we hold that the
    
    plaintiffs have failed to establish that they had a property
    
    interest protected by the Due Process Clause of the Fourteenth
    
    Amendment. Therefore, we will reverse the judgment of the district
    
    court with respect to the procedural due process claim.
    
         Additionally, this case involves the cross-appeal of the
    
    individual plaintiff David Solow.      Solow, who claimed that Captain
    
    Graham   violated    his   right   under    the   Fourth   and   Fourteenth
    
    Amendments to be free of unreasonable seizure, appeals from the
    
    judgment entered by the district court after it granted a defense
    
    motion for a directed verdict.             Because the record does not
    
    sufficiently link Captain Graham to the arrest related to this
    
    claim, we will affirm the district court's judgment as to it.
                        I. FACTS AND PROCEDURAL HISTORY
    
         County sheriffs' offices and other law enforcement agencies
    
    that are called to the scene of automobile accidents and breakdowns
    
    regularly summon wreckers to tow away disabled vehicles.             These
    
    calls or referrals are an important source of business for wrecker
    
    service companies.    The Collier County Sheriff's Office, like many
    
    law enforcement agencies, maintains a "rotation list" of local
    
    private wrecker service companies that it calls on a rotating basis
    
    when wrecker services are required.
    
         In October 1990, Sheriff Graham issued a document entitled the
    
    "Collier County Sheriff's Office Wrecker Service Policy."              The
    
    twelve-page typewritten policy specifies the various equipment and
    
    operating standards for wrecker service providers seeking to be
    
    placed on the rotation list, sets up an application process, and
    spells out the operational details of the rotation system.      The
    
    policy also requires that wrecker services on the rotation list
    
    comply with the terms it specifies in order to remain on the list.
    
    The provisions of the policy are quite detailed.
    
         The plaintiffs are two wrecker service businesses and their
    
    operators in Collier County.       Both wrecker services formerly
    
    received referral business from the Collier County Sheriff's Office
    
    through participation in the rotation call system.   Due to various
    
    incidents involving their operators and employees, both of the
                                                                1
    wrecker   services   were removed from the rotation list.       The
    
    plaintiffs received no notice or opportunity for a hearing before
    
    they were removed from the list.
    
         After being removed from the list, the plaintiffs commenced
    
    this lawsuit under to 42 U.S.C. § 1983.     Although the plaintiffs
    
    initially sought recovery under a number of theories of liability,
    
    the parties primarily focused on the plaintiffs' procedural due
    
    process claim, and so do we.2    Additionally, David Solow stated a
    
    claim against Captain Graham alone for unreasonable seizure in
    
         1
          The incidents leading to the removal of the plaintiffs from
    the rotation list included various traffic citations and criminal
    charges, each of which was later reduced, dismissed, or nolle
    prossed. One such incident ultimately led to the arrest of David
    Solow on a charge of tampering with evidence, and that arrest
    forms the basis for Solow's Fourth Amendment claim, which is
    discussed on pp. 18-20, below.
         2
          In addition to constitutional claims, discussed infra, the
    plaintiffs included in their complaint a claim for breach of
    contract. Under this theory, the plaintiffs contended that the
    wrecker rotation policy, as implemented by the Collier County
    Sheriff's Office, created a contractual relationship. The
    district court dismissed this claim, finding that the
    relationship between the parties had "no mutuality of obligation
    to form a contract," and the plaintiffs did not appeal that
    dismissal.
    violation of the Fourth and Fourteenth Amendments. At the close of
    
    the plaintiffs' evidence, the district court directed a verdict in
    
    favor of Captain Graham on that claim.
                               II. DUE PROCESS CLAIM
    
    A. THE ISSUE
    
         Resolution of the due process claim depends on the answer to
    
    a single question:     Did the plaintiffs have a constitutionally
    
    protected property interest in remaining on the rotation list? "In
    
    assessing a claim based on an alleged denial of procedural due
    
    process a court must first decide whether the complaining party has
    
    been deprived of a constitutionally protected liberty or property
    
    interest.    Absent such a deprivation, there can be no denial of due
    
    process."    Economic Dev. Corp. v. Stierheim, 
    782 F.2d 952
    , 954-55
    
    (11th Cir.1986).    It is undisputed that the plaintiffs received no
    
    notice or opportunity for a hearing prior to being removed from the
    
    rotation call list.    Therefore, as the defendants concede, if the
    
    plaintiffs had a constitutionally protected property interest in
    
    remaining on the rotation list, they were deprived of that interest
    
    without due process of law.
    
         The crux of the plaintiffs' argument is that the "mutually
    
    explicit understandings of the parties," taken together with the
    
    written   policy,   gave    rise   to   a   property   interest     under   the
    
    principles outlined in Board of Regents v. Roth, 
    408 U.S. 564
    , 
    92 S. Ct. 2701
    , 
    33 L. Ed. 2d 548
     (1972).          The defendants argue that the
    
    plaintiffs    misconstrue    the   principles    of    Roth,   at   least    as
    
    clarified by the Supreme Court's subsequent decision in Bishop v.
    
    Wood, 
    426 U.S. 341
    , 
    96 S. Ct. 2074
    , 
    48 L. Ed. 2d 684
     (1976).             Relying
    on Bishop and decisions of this Court that address the creation of
    
    property rights, the defendants argue that such property rights
    
    must be determined by reference to state law, and that Florida law
    
    recognizes no property interest under the circumstances of this
    
    case.    Accordingly, the defendants contend that the district court
    
    committed reversible error by failing to hold, as a matter of law,
    
    that no such interest existed and by denying their summary judgment
    
    and directed verdict motions on this claim.             We agree.3
    
    B. STANDARD OF REVIEW
    
             "State law defines the parameters of a plaintiff's property
    
    interest     for    section    1983   purposes,"      Mackenzie    v.   City   of
    
    Rockledge, 
    920 F.2d 1554
    , 1559 (11th Cir.1991) and "[w]hether state
    
    law has created a property interest is a legal question for the
    
    court to decide." Id. (quoting Marine One, Inc. v. Manatee County,
    
    
    877 F.2d 892
    , 894 (11th Cir.1989)).           Questions of law are subject
    
    to de novo review by this Court.          E.g., Swint v. City of Wadley,
    
    Ala., 
    51 F.3d 988
    , 994 (11th Cir.1995).
    
    C. ANALYSIS
    
         In Board of Regents v. Roth, 
    408 U.S. 564
    , 
    92 S. Ct. 2701
    , 
    33 L. Ed. 2d 548
        (1972),    the   Supreme   Court    discussed     the   basic
    
    principles governing the existence of property interests subject to
    
         3
          The district court submitted to the jury the ultimate
    question of whether the plaintiffs' constitutional rights were
    violated. That was error. The function of the jury, insofar as
    liability is concerned, is to decide genuine issues of material
    fact, of which there are none in this case. It is the function
    of the court, not the jury, to decide legal issues, such as
    whether the wrecker service policy that indisputably existed in
    this case created a property interest. Because there are no
    genuine issues of material fact involving the wrecker service
    policy claim, the legal issue of whether the policy created a
    property interest is dispositive of this claim.
    procedural due process protections:           "To have a property interest
    
    in a benefit, a person clearly must have more than an abstract need
    
    or desire for it.         He must have more than a unilateral expectation
    
    of it.    He must, instead, have a legitimate claim of entitlement to
    
    it."     Id. at 577, 92 S.Ct. at 2709.         The Court further explained
    
    how    such   a   claim    of   entitlement   may   be   created:     "Property
    
    interests, of course, are not created by the Constitution.              Rather
    
    they are created and their dimensions are defined by existing rules
    
    or understandings that stem from an independent source such as
    
    state law...."      Id.
    
           In Perry v. Sindermann, a companion case to Roth, the Supreme
    
    Court reiterated the conceptual basis for the creation of property
    
    rights: "A person's interest in a benefit is a "property' interest
    
    for due process purposes if there are such rules or mutually
    
    explicit understandings that support his claim of entitlement to
    
    the benefit...."          
    408 U.S. 593
    , 601, 
    92 S. Ct. 2694
    , 2699, 
    33 L. Ed. 2d 570
     (1972).         The plaintiffs point to the phrase "mutually
    
    explicit understandings" as support for their argument that their
    
    relationship with the Collier County Sheriff's Office creates a
    
    cognizable property interest, even in the absence of a contract
    
    with that office, and even in the absence of any supporting Florida
    
    statute, regulation, court decision, or any other source of Florida
    
    law creating the entitlement.             The plaintiffs' argument fails,
    
    however, because it disregards the post-Roth teachings of the
    
    Supreme Court, and it is inconsistent with the law of this Circuit
    
    regarding     the   creation     of   constitutionally    protected   property
    
    interests.
         After    Roth     and    Perry,    the       Supreme   Court      clarified       the
    
    relationship       between    state    law    and    the    creation     of    property
    
    interests,     holding       that    "the     sufficiency         of   the    claim    of
    
    entitlement must be decided by reference to state law."                       Bishop v.
    
    Wood, 
    426 U.S. 341
    , 344, 
    96 S. Ct. 2074
    , 2077, 
    48 L. Ed. 2d 684
     (1976)
    
    (policeman    had    no   property      interest      in    his    continued     public
    
    employment because North Carolina law did not act to create such an
    
    interest);     see also Logan v. Zimmerman Brush Co., 
    455 U.S. 422
    ,
    
    430, 
    102 S. Ct. 1148
    , 1155, 
    71 L. Ed. 2d 265
     (1982) ("The hallmark of
    
    property ... is an individual entitlement grounded in state law,
    
    which cannot be removed except "for cause.' ") (emphasis added).
    
            This Court has consistently applied the teachings of Bishop
    
    in the context of due process deprivation claims by looking to
    
    state   law   to    determine       whether   a     property      interest    has     been
    
    created.      See Warren v. Crawford, 
    927 F.2d 559
    , 562-64 (11th
    
    Cir.1991) (applying Georgia law to the question of whether the
    
    plaintiff in a wrongful discharge case had property interest in his
    
    county job and observing that even a "mutual understanding" cannot
    
    create a property interest contrary to state law);                     Mackenzie, 920
    
    F.2d at 1559 (holding that plaintiff had no property interest in a
    
    building permit because Florida law creates no such interest);
    
    Marine One, 877 F.2d at 894 (same);               Shahawy v. Harrison, 
    875 F.2d 1529
    , 1532 (11th Cir.1989) (relying on Florida statutory law in
    
    holding that physician had a property interest in the continuation
    
    of his medical staff privileges);                    Schneider v. Indian River
    
    Community College Found., 
    875 F.2d 1537
    , 1544 (11th Cir.1989)
    
    (examining Florida statutory law and holding that plaintiffs in
    wrongful discharge case had no property interest in their continued
    
    employment at a community college radio station);               Whitfield v.
    
    Finn, 
    731 F.2d 1506
    , 1508 (11th Cir.1984) (applying Alabama law in
    
    determining that discharged city police officer had no property
    
    interest in his job);   see also Lassiter v. Alabama A & M Univ., 
    28 F.3d 1146
    , 1148-52 (11th Cir.1994) (en banc) (looking to Alabama
    
    law in holding that state university officials were entitled to
    
    qualified immunity in wrongful discharge case because it was not
    
    clearly established that university vice president had a property
    
    interest under state law in continued employment).
    
         The decision in Bishop and this Court's precedents make clear
    
    that, if the plaintiffs in this case had a protected property
    
    interest in remaining on the wrecker rotation list in Collier
    
    County,   that   interest   must   be   rooted   in   Florida    law.    The
    
    plaintiffs do not cite, and we have not found, any decision of any
    
    Florida court indicating that they had an entitlement to remain on
    
    the rotation list.    Neither do they cite, nor have we found, any
    
    Florida statute, state administrative regulation, or any other
    
    source of Florida law that might be construed to provide the
    
    asserted entitlement.
    
         Instead, the plaintiffs rely on the sheriff's wrecker rotation
    
    policy itself for the creation of the alleged property right.
    
    Their reliance is misplaced, because there is no Florida state law
    
    authority that elevates that policy to the status of a regulation
    
    with the force of law.4        The policy was issued in the sole
    
         4
          In contrast, we note that Florida statutory law governs the
    wrecker rotation system utilized by the Florida Highway Patrol,
    Fla.Stat.Ann. § 321.051 (West 1994), and entitles wrecker service
    discretion of the Collier County Sheriff and no state agency with
    
    statutory authority to do so has authorized the sheriff to create
    
    the entitlement the plaintiffs urge us to recognize.              Because any
    
    expectations arising from the wrecker rotation policy of a county
    
    sheriff are not grounded in Florida law, such a policy does not
    
    give rise to a constitutionally protected property interest.
    
          The plaintiffs rely on Fla.Stat.Ann. sections 30.15, 30.53,
    
    and 316.640 as support for the proposition that Florida county
    
    sheriffs have authority to promulgate wrecker service regulations
    
    that have the effect of creating a legal entitlement.                 Section
    
    30.15 defines the general "[p]owers, duties, and obligations" of
    
    county sheriffs but contains no delegation of regulatory power.
    
    Fla.Stat.Ann. § 30.15 (West 1988).            Section 30.53 preserves the
    
    independence of sheriffs "concerning the purchase of supplies and
    
    equipment, selection of personnel ... setting of salaries," but
    
    says nothing about the promulgation of regulations.           Fla.Stat.Ann.
    
    § 30.53 (West 1988).        Section 316.640 authorizes the sheriff to
    
    "enforce   all   of   the   traffic   laws"   and   to   employ   a   "parking
    
    enforcement specialist" to assist in the issuance of parking
    
    tickets.   Fla.Stat.Ann. § 316.640 (West 1989).           In any event, the
    
    
    
    operators to a hearing in connection with removal from that
    particular rotation system, Fla.Stat.Ann. § 120.57 (West 1982).
    However, no comparable statutory provision governs wrecker
    rotation systems established by Florida county sheriffs.
    Although the Collier County Wrecker Service Policy requires that
    all wrecker services on the Collier County rotation list qualify
    for participation in the Florida Highway Patrol rotation system,
    the incorporation of Florida Highway Patrol standards into the
    Collier County policy cannot bootstrap that policy into a
    regulation with the force of law. Neither Florida law nor the
    Florida Highway Patrol standards requires such incorporation or
    elevates it into the status of an entitlement.
    question is not whether the sheriff had the authority to promulgate
    
    a wrecker rotation policy per se. Instead, the question is whether
    
    any state decisional law, statute, or regulation having the force
    
    of law authorized or mandated creation of the entitlement that
    
    plaintiffs claim.         None did.
    
         Although not binding precedent in this Court, Piecknick v.
    
    Commonwealth of Pennsylvania, 
    36 F.3d 1250
     (3rd Cir.1994), informs
    
    our analysis of the wrecker rotation policy at issue in this case.
    
    In Piecknick, the Pennsylvania State Police created and distributed
    
    a wrecker service policy designed to allocate wrecker service
    
    referral calls within Washington County.            Id. at 1253.         A key issue
    
    in   the     case    was        whether    the   policy     itself       created     a
    
    constitutionally protected property interest.               As here, the policy
    
    at issue had not been specifically authorized by, or codified in,
    
    any state statute or regulation nor had it been approved by any
    
    state agency with authority to do so.             Id. at 1258.       These factors
    
    prompted the Piecknick court to conclude:               "The guideline at issue
    
    here is not a regulation having the force of law....                    Accordingly,
    
    Piecknick    has    not    alleged     any   property     interest      entitled   to
    
    protection    under       the    Due   Process   Clause     of    the    Fourteenth
    
    Amendment."    Id. at 1259.         We find persuasive the analysis of the
    
    Third Circuit in Piecknick and we likewise reject the argument that
    
    the policy involved in this case could, in and of itself, create a
    
    property right under Florida law.
    
    D. DURHAM v. JONES
    
         The    preceding      analysis       illuminates     the    futility    of    the
    
    plaintiffs' efforts to distinguish Durham v. Jones, 
    698 F.2d 1179
    (11th Cir.1983), this circuits's only precedent addressing property
    
    interests in the context of a wrecker rotation list.              In Durham, a
    
    wrecker service operator brought a section 1983 action based on a
    
    Georgia sheriff's refusal to place him on the wrecker rotation list
    
    that the sheriff informally maintained.        Id. at 1180.       We held that
    
    the plaintiff did not have a property interest in being on that
    
    list.   Id. at 1181.
    
            The   plaintiffs   point   to    two   facts    in   an   attempt   to
    
    distinguish this case from Durham:             (1) a written policy is
    
    involved in this case, and (2) unlike the Durham plaintiff, the
    
    plaintiffs in this case have already received the benefits of
    
    wrecker service referrals. Yet these factual distinctions can lead
    
    to no difference in the result unless they operate to create a
    
    constitutionally protected property interest where there would
    
    otherwise be none.     As to the first factual distinction, we know of
    
    no authority for the proposition that the act of reducing a wrecker
    
    rotation   policy   to   writing   can   create   a    legally    enforceable
    
    entitlement.    There is no statute of frauds doctrine in procedural
    
    due process law.    As a matter of logic, it does not follow from the
    
    fact that no written policy was involved in the Durham case where
    
    no property interest was found, that the presence of a written
    
    policy would create such an interest.          As to the second factual
    
    distinction, it is axiomatic that the mere receipt of a benefit
    
    from the government does not automatically create an entitlement to
    
    that benefit.    Therefore, the factual distinctions urged by the
    
    plaintiffs do not persuade us to reach a result different from that
    
    in Durham.
    E. "WRECKER ROTATION" CASE LAW IN OTHER CIRCUITS
    
         Our holding in Durham, and our holding in this case, is
    
    consistent with the law of other circuits that have considered the
    
    issue of property rights in the context of wrecker rotation lists.
    
    The Second, Third, Fourth, Fifth, Seventh, and Tenth Circuits have
    
    addressed this issue.       The general principle that emerges from all
    
    of the decisions is that:
    
         Where a court has found a property interest in remaining on a
         rotation list, the plaintiff has alleged a claim of
         entitlement supported or created by a formal and settled
         source such as a state statute or regulatory scheme. Absent
         such an entitlement grounded in state law, courts have not
         found a protected property interest in remaining on a wrecker
         rotation list.
    
    Blackburn v. Marshall, 
    42 F.3d 925
    , 938 (5th Cir.1995).                    To
    
    illustrate the application of this principle, and to illuminate our
    
    own analysis, we review briefly the cases from each of these
    
    circuits.
    
         In the most recent case of this series, the Seventh Circuit
    
    considered    whether   a   wrecker   service   company   had   a    property
    
    interest in remaining on a city rotation list. O'Hare Truck Serv.,
    
    Inc. v. City of Northlake, 
    47 F.3d 883
     (7th Cir.1995).          The wrecker
    
    service company in O'Hare claimed that the City of Northlake
    
    violated its procedural due process rights when the city removed it
    
    from the rotation list without providing an opportunity for a
    
    hearing.     Id. at 884.    Although no statute or ordinance governed
    
    the rotation system, the company argued nonetheless that it had a
    
    protected property interest in remaining on the list.               The court
    
    rejected that argument stating, "We have, of course, found property
    
    interests arising from internal rules or regulations, but only when
    they have the force of law."         Id. at 886.        Finding no Illinois
    
    authority supporting the conclusion that Northlake's policy and
    
    practice concerning the rotation list had the force of law, the
    
    Seventh Circuit held that the wrecker service company had no
    
    property interest in remaining on the list.            Id.
    
           As noted previously, the Fifth Circuit articulated the general
    
    principle governing these cases in Blackburn v. Marshall, 42 F.3d
    
    at 938, another case in which the plaintiff claimed a property
    
    interest in remaining on a local law enforcement agency's wrecker
    
    rotation list.      The Blackburn Court drew from Roth, Perry, Bishop,
    
    Logan, and applicable Fifth Circuit decisions the principle that
    
    constitutionally protected property interests must be grounded in
    
    state law.      Applying that principle to the facts, the court
    
    concluded, "Because there apparently is no Texas or local statute,
    
    ordinance, or regulatory scheme governing the wrecker list ... we
    
    hold that Blackburn has failed to allege a property interest in
    
    remaining on the wrecker rotation list."              Blackburn, 42 F.3d at
    
    941.
    
           The Third Circuit applied the same principle in Piecknick, 36
    
    F.3d at 1257-59.     Distinguishing wrecker rotation cases in which a
    
    property interest had been found, the court stated:            "These cases
    
    are distinguishable. In all of them, a state statute or regulation
    
    gave a towing operator a property interest.              Here, there is no
    
    Pennsylvania statute or regulation governing towing or wrecker
    
    services."     Id. at 1257 (footnote omitted).               The court also
    
    considered    and   rejected,   as   we   do,   the    contention   that   the
    
    applicable wrecker service policy at issue could, of itself, create
    a protected property interest.              Id. at 1259.     Concluding that that
    
    policy was "not a regulation having the force of law" and noting
    
    the absence of "any other governing state law or regulation" to
    
    support the asserted entitlement, the court held that the plaintiff
    
    failed to establish a property interest protected by the Fourteenth
    
    Amendment.       Id.
    
          The Second Circuit considered whether a wrecker referral
    
    system created a property right in White Plains Towing Corp. v.
    
    Patterson, 
    991 F.2d 1049
     (2d Cir.), cert. denied, --- U.S. ----,
    
    
    114 S. Ct. 185
    , 
    126 L. Ed. 2d 144
     (1993).                 In that case, the state
    
    police divided a section of a state highway into three zones,
    
    assigning exclusive towing referral rights to a single wrecker
    
    service within each zone.            Under the system, the dispatcher called
    
    the assigned wrecker unless the disabled motorists requested a
    
    different wrecker service.            The plaintiff brought a section 1983
    
    due     process    claim     when     his    exclusive      zone   assignment      was
    
    terminated.         The    Second    Circuit    emphasized     that    the   wrecker
    
    assignment system was not authorized by or codified in any New York
    
    statute or regulation and held that "regardless of their unilateral
    
    hopes    or     expectations,   plaintiffs       had   no    cognizable      property
    
    interest in continued towing referrals ... and the mere termination
    
    of      their     status      thus     did      not      deprive      them    of    a
    
    due-process-protected interest."               Id. at 1062.
    
          Applying the same principle in a different state law context,
    
    the Fourth Circuit has recognized that a wrecker service company
    
    has a constitutionally protected property interest in remaining on
    
    a rotation list when state regulations require maintenance of the
    list for the stated purpose of providing companies with an equal
    
    opportunity to obtain the referral business.           Pritchett v. Alford,
    
    
    973 F.2d 307
     (4th Cir.1992).       That case involved a section 1983 due
    
    process claim brought by a wrecker service company that had been
    
    removed from a rotation list.            The rotation list was governed by
    
    extensive state regulations that "required every highway patrol
    
    district to establish wrecker zones and "wrecker-rotation' lists
    
    for the zones ... to ensure that all wrecker services on the list
    
    have an equal opportunity to the towing business arising from the
    
    rotation list."     Id. at 317.      As the court explained, "Being on
    
    [the list] by virtue of this state regulatory regime insured that
    
    it was a legally enforceable entitlement...."                   Id. (emphasis
    
    added).    As we have noted, no such state regulatory regime is
    
    present in this case.
    
          Likewise,    the   Tenth    Circuit    has   recognized    a   protected
    
    property interest in continued wrecker referrals when the referral
    
    system was directly governed by a state wrecker statute mandating
    
    that referrals be made on an equal basis.           Abercrombie v. City of
    
    Catoosa,   
    896 F.2d 1228
        (10th    Cir.1990).     The    plaintiff   in
    
    Abercrombie brought a section 1983 due process claim after he was
    
    removed from a city's wrecker rotation list.           To support his claim
    
    of entitlement, the plaintiff relied on the state wrecker statute,
    
    which required the city "to make wrecker referrals on an equal
    
    basis as nearly as possible" to licensed wreckers in or near the
    
    city limits.      Id. at 1232.       Closely examining the applicable
    
    statute, the court concluded that it "created a property interest
    
    in   wrecker   referrals in favor of the plaintiff."                 Id.    As
    previously explained, no analogous Florida statute operates to
    
    create a property interest in this case.
    
             In summary, every circuit to date that has considered the
    
    creation of property interests in the context of wrecker rotation
    
    lists has reached a decision in harmony with the principle recently
    
    distilled by the Fifth Circuit in Blackburn:       The existence of a
    
    property right in such a case turns on whether the alleged claim of
    
    entitlement is supported or created by state law such as a state
    
    statute or regulatory scheme or decisional law.      We see no reason
    
    for this circuit to depart from that principle, which is entirely
    
    consistent with our Durham decision.
    
             Because the plaintiffs have not, and apparently cannot, point
    
    to any Florida statute, state administrative regulation, or any
    
    other source of Florida law that provides the asserted entitlement
    
    in remaining on the wrecker rotation list, we hold that they have
    
    failed to allege a property interest protected by the Due Process
    
    Clause of the Fourteenth Amendment.      Accordingly, the judgment of
    
    the district court must be reversed with respect to the plaintiffs'
    
    claims arising from their removal from the list.5
    
         5
          In addition to the property interest claim, the plaintiffs'
    second amended complaint averred a procedural due process liberty
    interest claim, a substantive due process claim, and an equal
    protection claim resulting from their removal from the wrecker
    rotation list.
    
              The plaintiffs rely on Cowan v. Corley, 
    814 F.2d 223
         (5th Cir.1987) as support for their argument that they had a
         liberty interest in remaining on the rotation list. This
         reliance is misplaced. In Cowan, the Fifth Circuit held
         that it was error to dismiss a wrecker service's liberty
         interest claim when "[a]ll wrecker assignments, including
         those made on an owner-preference basis were routed through
         the sheriff's office," id. at 225, which allegedly resulted
         in the plaintiff's "exclusion from all wrecker calls
                       III. UNREASONABLE SEIZURE CLAIM
    
           David Solow's cross-appeal of the district court's decision
    
    to   grant   Captain    Graham's   directed   verdict   motion    on   the
    
    unreasonable seizure claim need not detain us long.       Solow's claim
    
    arises from a dispute he had at the scene of an automobile accident
    
    with Collier County Deputy Sheriff Charles Campbell, who is not a
    
    defendant in this case. When Deputy Campbell arrived at the scene,
    
    Solow had already loaded a wrecked vehicle for towing.             Deputy
    
    Campbell informed Solow that the vehicle would need to be unloaded
    
    to   facilitate   the   investigation.   Solow   became   upset   at   the
    
    
          originating on public property," id. at 227 (emphasis
          added). Here, the removal of the plaintiffs from the
          rotation list does not affect their right to operate wrecker
          service businesses, to remove vehicles from public property
          at the request of the owners, or to provide wrecker services
          to any member of the public who requests such services. In
          short, the removal of the plaintiffs from the rotation list
          does not cognizably burden the plaintiffs' liberty "to
          follow a chosen profession free from unreasonable
          governmental interference," Greene v. McElroy, 
    360 U.S. 474
    ,
          492, 
    79 S. Ct. 1400
    , 1411, 
    3 L. Ed. 2d 1377
     (1959), or "to work
          for a living in the common occupations of the community,"
          Truax v. Raich, 
    239 U.S. 33
    , 41, 
    36 S. Ct. 7
    , 10, 
    60 L. Ed. 131
     (1915).
    
               The plaintiffs' substantive due process claim is
          palpably without merit. Any expectations the plaintiffs may
          have had regarding the rotation list do not approach a right
          "implicit in the concept of ordered liberty" as required for
          the triggering of substantive due process protection. See
          McKinney v. Pate, 
    20 F.3d 1550
    , 1556 (11th Cir.1994)
          (quoting Palko v. Connecticut, 
    302 U.S. 319
    , 325, 
    58 S. Ct. 149
    , 152, 
    82 L. Ed. 288
     (1937); see also Lovins v. Lee, 
    53 F.3d 1208
    , 1209 (11th Cir.1995) (discussing the restricted
          authority of federal courts to expand substantive due
          process rights).
    
               The plaintiffs' equal protection claim is equally
          meritless, as they have "neither asserted nor established
          the existence of any suspect classification or the
          deprivation of any fundamental constitutional right."
          Hurrah Indep. Sch. Dist. v. Martin, 
    440 U.S. 194
    , 199, 
    99 S. Ct. 1062
    , 1065, 
    59 L. Ed. 2d 248
     (1979).
    prospect of losing the towing job, but unloaded the vehicle when
    
    Deputy Campbell directed him to do so.                  Subsequently, Deputy
    
    Campbell completed an affidavit seeking Solow's arrest.                       The
    
    warrant issued and Solow was arrested on a charge of tampering with
    
    evidence in violation of Fla.Stat. section 918.13.               Following his
    
    arrest, Solow did not sue Deputy Campbell;                    instead, he sued
    
    Captain Graham.
    
          At the close of the plaintiffs' proof in this case, the
    
    district court granted Captain Graham's motion for a directed
    
    verdict    on   the   unreasonable   seizure    claim    on    the   basis   that
    
    probable cause existed to support the arrest.              In ruling on this
    
    motion, and in response to argument from Solow's attorney, the
    
    court stated:     "I think you're wrong, counsel.         Once a warrant has
    
    been issued, at least in this circuit, that is probable cause.
    
    It's absolute probable cause as far as I know about it.                 I don't
    
    see how you can get around it."           The district court was mistaken,
    
    because    the    issuance    of     a    warrant   cannot       transform     an
    
    unconstitutional arrest into a constitutional one, nor can it
    
    insulate from liability an officer who obtains the warrant.                  E.g.,
    
    Malley v. Briggs, 
    475 U.S. 335
    , 
    106 S. Ct. 1092
    , 
    89 L. Ed. 2d 271
    
    (1986).     However, the constitutionality of Solow's arrest is
    
    irrelevant insofar as the defendant in this case, Captain Graham,
    
    is concerned, unless a sufficient connection exists between Captain
    
    Graham and the arrest.
    
         The    record    shows   no   such    connection.         Deputy   Campbell
    
    testified that his supervisor, Sergeant Greve, directed him to take
    
    information to the State Attorney's Office to determine whether
    there was sufficient evidence for prosecution.    It is undisputed
    
    that after consultation with an Assistant State Attorney, Deputy
    
    Campbell completed and signed the affidavit seeking Solow's arrest.
    
    Although the testimony of Captain Graham is somewhat ambiguous on
    
    this point, it appears from the testimony that the extent of his
    
    involvement in the matter was limited to reviewing the facts with
    
    Deputy Campbell, telling him to proceed with the investigation and
    
    to take his findings to the State Attorney's office, and discussing
    
    the incident with in-house counsel at the Collier County Sheriff's
    
    Office.
    
         Because Solow failed to offer sufficient evidence to present
    
    a jury issue on whether Captain Graham caused Deputy Campbell to
    
    obtain the warrant, we affirm the trial court's decision to direct
    
    a verdict in Graham's favor on this claim.6
                              IV. CONCLUSION
    
         For the foregoing reasons, the judgment of the district court
    
    respecting the removal of the plaintiffs from the wrecker rotation
    
    list is REVERSED, the judgment of the district court with respect
    
    to David Solow's unreasonable seizure claim is AFFIRMED, and the
    
    case is REMANDED for entry of a judgment in favor of the defendants
    
    on all claims.
    
    
    
    
         6
          Because both defendants are entitled to judgments in their
    favor as to all the claims involved, their other arguments and
    the plaintiffs' cross-appeal contending that the district court
    erred in dismissing the defendants in their individual capacities
    are moot.
    

Document Info

DocketNumber: 94-3158

Filed Date: 12/18/1995

Precedential Status: Precedential

Modified Date: 3/3/2016

Authorities (26)

Lovins v. Lee , 53 F.3d 1208 ( 1995 )

Truax v. Raich , 239 U.S. 33 ( 1915 )

Palko v. Connecticut , 302 U.S. 319 ( 1937 )

Greene v. McElroy , 360 U.S. 474 ( 1959 )

Board of Regents of State Colleges v. Roth , 408 U.S. 564 ( 1972 )

Perry v. Sindermann , 408 U.S. 593 ( 1972 )

Bishop v. Wood , 426 U.S. 341 ( 1976 )

Harrah Independent School Dist. v. Martin , 440 U.S. 194 ( 1979 )

Logan v. Zimmerman Brush Co. , 455 U.S. 422 ( 1982 )

Malley v. Briggs , 475 U.S. 335 ( 1986 )

William Mac Durham D/B/A Durham Wrecker Service v. Ralph ... , 698 F.2d 1179 ( 1983 )

Glen Whitfield v. Ira Finn, as Chief of Police of the City ... , 731 F.2d 1506 ( 1984 )

the-economic-development-corporation-of-dade-county-inc-a-florida-not , 782 F.2d 952 ( 1986 )

Vernon Cowan v. Joe Corley, Sheriff of Montgomery County, ... , 814 F.2d 223 ( 1987 )

mahfouz-el-shahawy-md-ms-facc-individually-and-mahfouz-el , 875 F.2d 1529 ( 1989 )

brian-schneider-and-tom-cosgrove-v-indian-river-community-college , 875 F.2d 1537 ( 1989 )

marine-one-inc-robert-e-schmidt-cross-appellees-marine-two-inc-v , 877 F.2d 892 ( 1989 )

Duncan E. MacKenzie v. City of Rockledge, a Municipal ... , 920 F.2d 1554 ( 1991 )

James A. Warren v. Dave Crawford , 927 F.2d 559 ( 1991 )

robert-pritchett-ben-pritchett-marietta-garage-incorporated-v-rn , 973 F.2d 307 ( 1992 )

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