Freeman v. City of Dallas , 186 F.3d 601 ( 2001 )

  •                          REVISED - March 5, 2001
                          UNITED STATES COURT OF APPEALS
                               FOR THE FIFTH CIRCUIT
                                    No. 97-10907
                        CHARLES FREEMAN and ROSALYN BROWN,
                                   CITY OF DALLAS,
             Appeal from the United States District Court for the
                          Northern District of Texas
                                  February 22, 2001
    Circuit Judges.*
    EDITH H. JONES, Circuit Judge:
                The City of Dallas served notices on the owners of two
    vacant, deteriorated apartment houses, warning them to repair or
    demolish the structures.       The owners fought the order according to
    City procedures but lost.       After the City tore down the condemned
    buildings,    the    owners   filed    suit   in   federal   court   alleging
    violations of the Fourth Amendment and the Due Process Clause.              A
    divided panel of this court held that although the City procedures
    complied with due process, the City must also obtain a pre-
                Chief Judge King did not participate in this decision.
    demolition warrant of some sort in order to satisfy the Fourth
    Amendment.      This court, sitting en banc, disagrees with the panel
    majority’s interpretation of the Fourth Amendment and denies relief
    to   the   property      owners.    A   warrant   is   unnecessary   when   a
    municipality seizes property that has been declared a nuisance by
    means of established police power procedures.
                 Between December 1992 and April 1993, Rosalyn Brown
    acquired two vacant, eight-unit apartment buildings in Dallas,
    Texas located at 2621 and 2611 Meyers Street.              Brown paid $10.00
    for the first building and $1.00 for the second, which had suffered
    fire   damage    prior    to   purchase.     On   August   11,   1994,   Brown
    transferred a one percent undivided interest in both buildings to
    her brother, Charles Freeman. The buildings remained vacant during
    the entire period of plaintiffs’ ownership.
                 Brown intended to rent the apartment units after making
    repairs.      To this end, she asked Freeman to be the general
    contractor in charge of renovating the apartments.               Freeman was
    neither a registered engineer or architect, nor did he possess a
    general contractor’s license or trade license from the State of
    Texas.     No construction company or crew worked for him.
                 In April and July of 1993, inspectors from the Dallas
    Department of Housing and Neighborhood Services (the “Department”)
    cited the plaintiffs’ two apartment buildings for non-compliance
    with the City’s Minimum Urban Rehabilitation Standards Code (the
    “Code”).     According to the Department’s inspectors, the buildings
    together needed nearly $200,000 in repairs to comply with the Code.
    When   the   Code      violations   were       not   corrected,          the     Department
    referred the matter to the Urban Rehabilitation Standards Board
    (“URSB”) and recommended demolition.
                 The    URSB   was   established         by    the    City     of    Dallas    to
    determine       whether    property    condition           reports       filed     by    city
    inspectors identify violations of the City’s building codes.                              The
    URSB   comprises        thirty   private        citizen          members        (and    eight
    alternates) who are appointed by the Dallas City Council. The URSB
    may determine, after a hearing, whether a given structure is an
    “urban nuisance” and take various remedial measures.                            The URSB is
    authorized by city ordinance to order repairs, receivership, the
    closing and vacating of buildings, demolition, and civil penalties
    of up to two thousand dollars a day against property owners who
    fail to repair or demolish a structure after the board has issued
    a valid determination and remedial order.                   DALLAS, TEX., CODE ch. 27,
    art. II, § 27-8.
                 The URSB functions through hearing panels composed of
    members    of    the   URSB.     The   Dallas        City    Code    establishes          the
    procedure to be used by the panels.                       At a hearing, “an owner,
    lessor, occupant, or lienholder may present witnesses in his own
    behalf and is entitled to cross-examine any witnesses appearing
    against him.”    DALLAS, TEX., CODE ch. 27, art. II, § 27-9(c).   The
    decision of the hearing panel is final except that rehearings may
    be granted in certain instances.       The code also gives an affected
    property owner an absolute right to appeal the panel decision to
    state district court.   DALLAS, TEX., CODE ch. 27, art. II,§ 27-9(e).
    Under state law, the court considers whether the landowner’s
    substantial rights have been prejudiced because the URSB decision
    violates constitutional or statutory law; exceeds URSB’s authority;
    is based on unlawful procedure or any other error of law; is
    unsupported by substantial evidence; or is arbitrary or capricious
    or an abuse of discretion.    TEXAS GOV’T CODE § 2001.174(2).
                After receiving the Department’s reports on plaintiffs’
    properties, the URSB conducted a title search and mailed a notice
    of hearing on each of the properties to the owner of record.1      The
    notice announced that the URSB might order demolition to remedy the
    Code offenses. It further stated that the property owner would “be
    given an opportunity to present evidence and witnesses if so
                In preparation for the hearings, Department staffers
    briefed the panel of URSB members assigned to decide the fate of
              Freeman did not get notice because he had no interest in
    either property at this time.    Brown received a notice on 2621
    Meyers Street, the property of which she was the owner of record.
    Brown did not receive notice on the 2611 Meyers Street property
    because, although she had purchased the property by this date, she
    had not yet filed a warranty deed. Instead, the notice on 2611
    Meyers Street was sent to the owner of record, Robert Burkhead.
    the Meyers Street properties. They provided the panel members with
    information on the properties, including repair cost estimates, and
    accompanied some of them on a tour of the premises.
              Freeman appeared at the hearings, identifying himself as
    the “attorney-in-fact for Brown” and as an owner of 2611 and 2621
    Meyers Street.   The panel looked at pictures of the structures,
    questioned Freeman about his plans for repair, and asked whether he
    had the funds for repair.   Freeman testified that he lacked funds
    at present and asked for more time to make repairs.     Expressing
    doubt about Freeman’s ownership and his ability to finance repairs,
    the panel unanimously voted to demolish each apartment building as
    an urban nuisance.2
              The Code defines an “urban nuisance” as the following:
                    [A] premises or structure that:
                    (A) is reasonably dangerous to the physical health
                    or safety of an occupant or other person; or
                    (B) because of violations of [the Code] . . ., its
                    state of disrepair is such that it could reasonably
                    cause injury, damage, harm, or inconvenience to a
                    considerable portion of the community in the use
                    and enjoyment of property, materially interfering
                    with the proper use or comfort and enjoyment of
                    surrounding property, taking into consideration the
                    nature and use of the properties in the area and
                    the character of the community in which they are
                    situated, which condition would be substantially
                    offensive and annoying to persons of ordinary
                    sensibilities, tastes, and habits living in the
              DALLAS, TEX., CODE ch. 27, art. I, § 27-3(23).
         The Code goes on to prescribe with specificity the minimum
    structural, health and utility standards whose breach may result in
    the declaration of an urban nuisance. Dallas, Tex., Code ch. 27,
    Art. III, § 27-11.
              Following   the    hearing,   Freeman   signed   notices   of
    demolition for both apartment buildings.       He then asked for and
    received a rehearing from the URSB.     Two panel members visited the
    properties before the rehearings.       They examined the exterior of
    the apartment building at 2611 Meyers Street.         At 2621 Meyers
    Street, they ran into Freeman.    He showed them repairs he had made
    inside that property, and they told him to bring pictures of these
    repairs to the rehearings.
              At the rehearing, the Department showed pictures of the
    apartment buildings’ exteriors.       In response, Freeman testified
    that he thought he could acquire most of the repair materials at
    little or no cost.    He further stated that he hoped to finance
    repairs through a loan from the City; he had received a commitment
    from relatives in the construction business to help him make
    repairs if he received a City loan.
              Freeman also submitted pictures of one unit in the 2621
    Meyers Street building that he had repaired, and he presented a
    list of repair materials that he had already collected. He further
    testified that he could renovate each unit at 2621 Meyers Street
    for $2000.   Though panel members reacted skeptically and reminded
    him of the Department’s repair cost estimates, Freeman did not
    inquire about the basis for these estimates nor did he ask to
    question the Department officials responsible for them.
              The panel again voted to demolish plaintiffs’ buildings.
    The vote was unanimous on the 2611 Meyers Street property and was
    split five to two on the 2621 Meyers Street property.      Freeman
    received a notice of demolition for each property at the end of the
    rehearing, and he signed them. The notice advised that the panel’s
    decision could be appealed within twenty days to state district
    court for review.    Freeman and Brown did not appeal the URSB
    decision to state district court.3
              When Brown and Freeman failed to demolish the buildings
    within thirty days, the City hired a contractor to do the work.
    The two vacant structures were demolished in late December 1994,
    and the costs of the demolition were assessed against Freeman and
    Brown in the total amount of about $16,000.
              A year and a half later, Freeman and Brown filed suit
    against the City of Dallas under 42 U.S.C. § 1983.    They alleged
    that the demolition of their apartment buildings without first
              The URSB also sent notice of the order to demolish the
    building at 2611 Meyers Street to Freeman and notice of the order
    to demolish the building at 2621 Meyers Street to Freeman and
    Brown. The notices stated, in part:
         If you do not demolish the structure(s) within the time
         above indicated [30 days], the city will arrange to have
         this work done and the expense of that demolition
         performed under contract with the city will constitute a
         lien on the real property on which the structure(s) were
         located, and that lien will run with the land.
    These notices were sent to the same addresses at which Brown and
    Freeman had received mail about earlier hearings, but they were
    returned as “Unclaimed.”
    obtaining a judicial warrant constituted an unreasonable seizure in
    violation of the Fourth Amendment.             They also alleged that the
    URSB’s procedure for condemning and demolishing their apartment
    buildings and for imposing liens on the remaining realty denied
    them       procedural   due   process   in   violation   of   the   Fifth   and
    Fourteenth Amendments.
                   Freeman and Brown moved for summary judgment on the
    Fourth Amendment claim while the City moved for summary judgment on
    all claims.       The district court granted the plaintiffs’ motion on
    the Fourth Amendment claim and granted the City’s motion on the Due
    Process claims.         Following a one-day trial on damages for the
    Fourth Amendment violation, the district court accepted the jury’s
    verdict and entered final judgment against the City of Dallas in
    the amount of $20,000 plus interest.
                   A divided panel of this Court affirmed the district
    court’s summary judgment for the property owners with respect to
    the Fourth Amendment claim, while also affirming the rejection of
    the plaintiffs’ Due Process claims.4              See Freeman v. City of
    186 F.3d 601
     (5th Cir. 1999), reh’g en banc granted, 
    200 F.3d 884
     (5th Cir. 1999).               We granted rehearing en banc to
    reconsider the Fourth Amendment ruling.
              This court reinstates the panel opinion concerning the
    Due Process claims.
                                     II.       DISCUSSION
                  The panel majority reasoned toward a violation of the
    Fourth Amendment in three steps.                   First, the demolition of the
    Freemans’ apartment houses was a “seizure” for Fourth Amendment
    purposes.      Second, the seizure had to be preceded by a warrant.
    Third,    a   warrantless       seizure,         even    if   it    occurred   following
    constitutionally         adequate      local       condemnation        procedures,     is
    unreasonable and therefore unconstitutional.                       While we agree that
    the City seized the Freemans’ real property for demolition,5 we do
    not accede to the panel majority’s inflexible warrant requirement
    in   this     context    or    its   supplanting         of     the   Fourth   Amendment
    reasonableness inquiry with such a requirement.                        The text of the
    Fourth Amendment conspicuously fails to require a warrant for every
    government      search    or    seizure.           And    the      controlling    caselaw
    emphasizes      reasonableness,        a    balancing         of   governmental    versus
    private interests, as the touchstone of the Fourth Amendment.
                  Since the relevant facts are undisputed, summary judgment
    was granted on the merits as a matter of law, see Fed. R. Civ. P.
              “Seizure” of property occurs when there is some
    meaningful interference with an individual’s possessory interests
    in that property, United States v. Jacobsen, 
    466 U.S. 109
    , 113, 
    104 S. Ct. 1652
    , 1656 (1984), and a “seizure” may occur in both civil
    and criminal contexts. There can be no question that the city’s
    actions against the Freeman’s apartment buildings constituted a
    “seizure”. See Soldal v. Cook County, Ill., 
    506 U.S. 56
    , 62 & n.7,
    113 S. Ct. 538
    , 544 & n.7 (1992), (holding that the forcible
    removal of a mobile home, leaving the owners dispossessed,
    constituted a “seizure” under the Fourth Amendment).
    56(c).   We review the district court’s decision de novo.        See
    United States v. Johnson, 
    160 F.3d 1061
    , 1063 (5th Cir. 1998).
              The Fourth Amendment, made applicable to the States by
    the Fourteenth Amendment, Ker v. California, 
    374 U.S. 23
    , 30, 83 S.
    Ct. 1623, 1628 (1963), declares:
              The right of the people to be secure in their
              persons, houses, papers, and effects, against
              unreasonable searches and seizures, shall not
              be violated, and no Warrants shall issue, but
              upon probable cause, supported by Oath or
              affirmation, and particularly describing the
              place to be searched, and the persons or
              things to be seized.
    This provision contains two separate and independent clauses.    The
    first proscribes “unreasonable searches and seizures,” and the
    second prescribes the narrow conditions under which a warrant may
    issue. Nothing in the text suggests that warrants are required for
    every search or seizure, nor is the existence of a warrant a sine
    qua non for a reasonable search or seizure.   While the text plainly
    mandates reasonableness in the seizure, it does not instruct
    whether a warrant is necessary to ensure the reasonableness of the
    City’s demolition order.
              To determine the necessity of a warrant here, we might
    consider common law at the time the Fourth Amendment was adopted,
    see Wyoming v. Houghton, 
    526 U.S. 295
    , 299, 
    119 S. Ct. 1297
    , 1300
    (1999), but, contrary to plaintiffs’ assertions, the quest would be
    fruitless.   Confusing the demands of due process with the warrant
    clause, plaintiffs’ historical argument observes that, at common
    law, apart from cases where a nuisance posing an imminent danger
    could be summarily abated by self-help, structures were ordinarily
    determined to be nuisances in criminal or civil abatement actions.
    Because the courts at the time of the framing of the Constitution
    oversaw nuisance law, plaintiffs assume that they must continue
    constitutionally to play a role under the aegis of the Warrant
    Clause. There are two serious flaws in this argument.                 First, none
    of   the   cases   cited     by   the   plaintiffs    deals    with    warrants.6
    Instead, cases from the nineteenth century involved judicial review
    to   determine     whether    structures     or   activities    were    in   fact
    injurious    under   state    and   local    police   power.7     Other      cases
    evaluated nuisance determinations by the standards of procedural
              The    federal government lacked authority over nuisances at
    and after the    time of the framing, and the Fourth Amendment was not
    first applied    to the states until 1961. Mapp v. Ohio, 
    367 U.S. 643
    646-47, 81 S.    Ct. 1684, 1686-87 (1961).
              See Yates v. Milwaukee, 
    77 U.S. 497
    , 505, 
    19 L. Ed. 984
    (1870)(“It is a doctrine not to be tolerated in this country, that
    a municipal corporation, without any general laws either of the
    city or of the State, within which a given structure can be shown
    to be a nuisance, can, by its mere declaration that it is one,
    subject it to removal by any person supposed to be aggrieved, or
    even by the city itself.”); Hennessy v. St. Paul, 
    37 F. 565
    , 566
    (C.C. Minn. 1889)(“[U]nless a nuisance, as defined by the common
    law or by statute, exists, the act of the common council cannot
    make it one by a mere resolution. Such a doctrine might place the
    property of the people, no matter what in fact might be its real
    condition and character, at the disposal of the common council,
    without compensation.”); Underwood v. Green, 
    42 N.Y. 140
    1870); J.E. Macy, Annotation, Constitutional Rights of Owner as
    Against Destruction of Building by Public Authorities, 
    14 A.L.R. 2d 73
    , *8 (1950) (“[N]either at common law nor under such express
    power can it, by its mere declaration that specified property is a
    nuisance, make it one when in fact it is not.”).
    and substantive due process.8       Whatever these cases may imply about
    the historical view of the reasonableness of particular nuisance
    decisions, they say nothing about employing the Warrant Clause to
    review those decisions.
                   Second, the plaintiffs theorize that because nuisance
    determinations historically involved judicial procedures, such
    determinations can only be “reasonable” today if they are subject
    to plenary court review. This theory is fundamentally at odds with
    the        development   of   governmental     administrative      agencies.
    Characteristically, agency decisions are deferred to by the courts.
    Plaintiffs apparently seek, however, to broaden courts’ involvement
    in    nuisance    decision-making   contrary   both   to   the   deferential
               See, e.g., Lawton v. Steele,152 U.S. 133, 141, 14 S.
    Ct. 499, 502 (1894) (“If the property were of great value . . . it
    would be putting a dangerous power in the hands of a custom officer
    to permit him to sell or destroy it as a public nuisance, and the
    owner would have good reason to complain of such act as depriving
    him of his property without due process of law.”); Mugler v.
    123 U.S. 623
    8 S. Ct. 273
    , 301 (1887)(“The exercise of the
    police power by the destruction of property which is itself a
    public nuisance, or the prohibition of its use in a particular way,
    whereby its value becomes depreciated, is very different from
    taking property for public use, or from depriving a person of his
    property without due process of law.”); Our House v. The State, 
    4 Greene 172
    1853 WL 221
    , *2 (Iowa 1853)(holding that a law
    declaring “dram shops” to be public nuisances, authorizing their
    abatement, and establishing certain procedures for notice and a
    hearing “does not deprive a person of his property without due
    process of law”). The notion of substantive due process survives
    in challenges to municipal zoning and nuisance decisions, as this
    court has recently held. John Corp. v. City of Houston, 
    214 F.3d 573
    , 581-86 (5th Cir. 2000) (allegation that city deprived
    landowners    of    property   by    allowing   demolition    under
    unconstitutionally vague ordinance states cognizable substantive
    due process claim).
    standard of judicial review of administrative decisions and to the
    broad standards for issuance of warrants.          None of the decisions
    produced by plaintiffs justifies reverting to the 18th century
    judicial role in nuisance abatement.            This court’s comment in
    rejecting, over twenty-five years ago, a similar argument for
    reinstituting common law judicial review of nuisance determinations
    bears repeating:
          [F]or the purposes of marking the limits of federal
          constitutional due process the common law of nuisance
          must   be   considered  a   jurisprudential artifact,
          interesting but not controlling.
    Traylor v. City of Amarillo, 
    492 F.2d 1156
    , 1159 (5th Cir. 1974)
    (Goldberg, J.). Even more emphatically, the common law of nuisance
    affords no basis for creating a per se judicial warrant requirement
    that is redundant of procedural and substantive safeguards inherent
    in   modern    administrative   law   and   explicit   municipal   nuisance
                  Where history yields no firm answer, a search or seizure
    must be evaluated under traditional standards of reasonableness.
    Wyoming, 526 U.S. at 300, 119 S. Ct. at 1300.          There is no Supreme
    Court caselaw directly on point. Still, the Court has expressed an
    overarching test of reasonableness that is antagonistic to an
    inflexible warrant requirement.       Thus, the reasonableness standard
    is one that reflects a “‘careful balancing of governmental and
    private interests.’”      Soldal, 506 U.S. at 71, 113 S. Ct. at 549,
    (quoting New Jersey v. T.L.O., 
    469 U.S. 325
    , 341, 
    105 S. Ct. 733
    742 (1985)).    More recently, the Court reiterated, “as the text of
    the   Fourth   Amendment    indicates,     the   ultimate   measure    of   the
    constitutionality     of    a   government   search   is    reasonableness.”
    Vernonia School Dist. 47J v. Acton, 
    515 U.S. 646
    , 652, 
    115 S. Ct. 2386
    , 2390 (1995).9        Vernonia also clearly distinguishes between
    the   reasonableness       of   government   searches      and   the   warrant
                Where   a   search   is   undertaken   by   law
                enforcement officials to discover evidence of
                criminal wrongdoing, this Court has said that
                reasonableness     generally    requires    the
                obtaining of a judicial warrant.       Warrants
                cannot be issued, of course, without the
                showing of probable cause required by the
                Warrant Clause. But a warrant is not required
                to establish the reasonableness of all
                government searches; and when a warrant is not
                required (and the Warrant Clause therefore not
                applicable), probable cause is not invariably
                required either.10
              See also City of Indianapolis v. Edmond, 
    121 S. Ct. 447
    4451 (2000) (“The Fourth Amendment requires that searches and
    seizures be reasonable.”); Ohio v. Robinette, 
    519 U.S. 33
    , 39, 
    117 S. Ct. 417
    , 421 (1996)(“the touchstone of the Fourth Amendment is
    reasonableness”) (internal quotations omitted); Whren v. United
    517 U.S. 806
    , 817, 
    116 S. Ct. 1769
    , 1776 (1996)(“It is of
    course true that in principle every Fourth Amendment case, since it
    turns upon a reasonableness determination, involves a balancing of
    all relevant factors.”)(quotations omitted); Camara v. Municipal
    Court of San Francisco, 
    387 U.S. 523
    87 S. Ct. 1727
    18 L. Ed. 930
    (1967)(“[R]easonableness is still the ultimate standard [under the
    Fourth Amendment].”); Carroll v. United States, 
    267 U.S. 132
    , 147,
    45 S. Ct. 280
    , 283, 
    69 L. Ed. 543
     (1925)(“The Fourth Amendment does
    not denounce all searches and seizures, but only such as are
              The Court goes on in the same paragraph of Vernonia to
    state that:
          A    search   unsupported     by     probable   cause      can   be
    Vernonia, 515 U.S. at 653, 115 S. Ct. at 2390-91 (emphasis added)
    (citations    omitted).     Under   these   decisions,    the   fundamental
    inquiry,     which   we   will   address    in   detail   later,     is   the
    reasonableness of the City’s seizure.
               The property owners contend, however, and this court’s
    panel opinion held that, the seizure of their property was per se
    unreasonable unless the City obtained a warrant to enforce its
    demolition order.     In support of this position, plaintiffs and the
    panel majority rely on a handful of cases.            Their reliance is
               In companion cases, the Court did extend a warrant
    requirement of a sort to administrative inspections of private
    homes and business properties, the purpose of which was to verify
    compliance with municipal health and safety codes.                 Camara v.
    Municipal Court of San Francisco, 
    387 U.S. 523
    87 S. Ct. 1727
    (1967); See v. City of Seattle, 
    387 U.S. 541
    87 S. Ct. 1737
    (1967).    Evidence of code violations uncovered by the warrantless
    searches     might lead to fines or other penalties.        Balancing the
    need for searches against the property owners’ privacy, the Court
         constitutional, we have said, ‘when special needs, beyond
         the normal need for law enforcement, make the warrant and
         probable-cause requirement impracticable’.
    515 U.S. at 653, 115 S. Ct. at 2391. By its terms, and by the
    Court’s further explanation, the “special needs” caveat tends to
    expand rather than narrow exceptions to the warrant requirement.
    Further, “special needs” are relevant to relaxation of the
    probable-cause basis for a government search for evidence. Here,
    however, there is probable cause for the City’s seizure.
    concluded that warrants were necessary to check the unfettered
    discretion code enforcement officers had in the field.                    A property
    owner had “no way of knowing whether enforcement of the municipal
    code involved requires inspection of his premises, no way of
    knowing the lawful limits of the inspector’s power to search, and
    no way of knowing whether the inspector himself is acting under
    proper authorization.”              Camara, 387 U.S. at 532.          Only with the
    protection of an administrative warrant would property owners avoid
    capricious or overbroad searches.
                   Camara    and    See   are    distinguishable       from   this   case.
    First,      since       searches      to     gather    evidence     of    regulatory
    noncompliance invade citizens’ privacy “without particularized
    suspicion of misconduct,”11 they need only satisfy standards of
    administrative reasonableness.                Marshall v. Barlow’s, Inc., 
    436 U.S. 307
    ,    320,    98     S.   Ct.    1816,   1824   (1978)   (requiring     only
    administrative reasonableness for regulatory searches); Griffin v.
    483 U.S. 868
    , 877 n.4, 
    107 S. Ct. 3164
    , 3170 n.4 (1987)
    (requiring       only    administrative           reasonableness    for   regulatory
    searches).       Here, the evidence of municipal              code violations had
    already been obtained by means unchallenged by the landowners, and
    the administrative adjudication of noncompliance has occurred. The
    landowners availed themselves of two hearings resulting in a
    decision of the seven-member panel of the URSB, and after these
              City of Indianapolis v. Edmond, ____ U.S. ____, 121 S.
    Ct. 447, 451 (2000).
    proceedings, there remained         a possibility of state court judicial
    review.      What is sought by these plaintiffs is not protection
    against an unregulated search for evidence of wrongdoing, but
    additional protection to forestall the result of already-determined
                 Second, the URSB, unlike the field code inspectors in
    Camara and See, could not operate with unbridled discretion.                    The
    municipal       code   specifies   grounds    on   which   a   building   may    be
    determined to be a public nuisance.12              The property owners’ right
    to     defend    the    case   against    their    apartment     buildings      was
    procedurally secure. Only by impugning the institutional integrity
    of the URSB can one arrive at the conclusion, unsupported in this
    record,     that   it   exercised   standardless      discretion    and   either
    arbitrarily enforced the municipal code or failed to consider the
    property owners’ evidence.          The nature of the URSB’s adjudicative
    function13 imposes more numerous and more transparent constraints
    on the URSB than did the evidence-gathering function performed by
    field officers randomly inspecting private buildings in Camara and
                 See supra note 2.
              The Texas Local Government Code describes the agencies
    like the URSB as exercising “Quasi Judicial Enforcement of Health
    and Safety ordinances.” Subchapter C, Texas Local Gov’t. Code,
    Tit. 2, Subtitle D, Ch. 54 (§§ 54.032-54.042).
                 Third, it is hard to understand what protection the
    Camara-approved administrative warrant would provide for these
    plaintiffs.       Camara     relaxed   the     probable   cause     standard      for
    issuance     of   such     warrants,    requiring     only    a    more    general
    determination that “legislative or administrative standards for
    conducting an area inspection” be reasonable.                Camara, 387 U.S at
    538, 87 S. Ct. at 1735-36.             Camara-style administrative search
    warrants need not be issued by judicial officers.                  See Griffin v.
    483 U.S. 868
    , 877 and n.5, 
    107 S. Ct. 3164
    , 3170 and n.5
    (1987).    Plaintiffs also admit that administrative search warrants
    may   be   issued     ex   parte.      While    the   Court’s      standards      may
    meaningfully constrain officials who enter private property for
    inspection purposes, they are obviously ill-suited to regulate
    completed administrative condemnation proceedings. If a warrant of
    some type is to be imposed in lieu of state judicial review, it
    must be on terms different from the Camara warrants in order to
    assist these landowners.           But if the terms are different, then a
    different justification is necessary.
                 Camara    and   See    thus     doubly   fail    to    support       the
    plaintiffs’ argument. Those cases imply either that seizure of the
    apartment buildings was preceded by reasonable, rigorous procedures
    that protected the property owners’ rights, or they mandate an ex
    parte,     possibly    nonjudicial     administrative        warrant      shorn    of
    probable cause, which does the property owners no good.                       While
    useful in their sphere, these cases fail to support a warrant
    following a completed nuisance abatement procedure.
                The landowners have also cited Soldal in support of their
    warrant argument, but Soldal is not even a warrant case.    The only
    issue decided by Soldal was whether the nonjudicial eviction-by-
    relocation of the tenants’ mobile home, with sheriffs’ deputies
    assisting, constituted a seizure within the Fourth Amendment.      The
    Court refused to consider whether the seizure was constitutionally
    reasonable, as it stated:
           Whether the [4th] Amendment was in fact violated is, of
           course, a different question that requires determining if
           the seizure was reasonable. That inquiry entails the
           weighing of various factors and is not before us.
    Soldal, 506 U.S. at 62, 113 S. Ct. at 543.
                In the final case offered by plaintiffs, the Supreme
    Court held that the IRS must obtain a warrant to search private
    premises to locate property that may be seized to enforce a valid
    federal tax lien.   GM Leasing Corp. v. United States, 
    429 U.S. 338
    97 S. Ct. 619
     (1977). More significantly for present purposes, the
    Court distinguished a search for unidentified nonexempt property
    from a seizure, and it rejected requiring a warrant for seizures of
    the taxpayer’s vehicles from property where the seizures “did not
    involve any invasion of privacy.”      429 U.S. at 351, 97 S. Ct. at
    628.   Similarly in this case, the plaintiffs retained little or no
    reasonable expectation of privacy in their dilapidated, uninhabited
    rental properties after the URSB had entered orders declaring them
    an urban nuisance, and the owners had failed to abate the code
               GM     Leasing     also    states    that     where       seizures   are
    sustainable under the Due Process Clause, constitutional analysis
    of the same acts under the Fourth Amendment “is similar and yields
    a like result.”     Id. at n.18.      Texas’s administrative condemnation
    procedures have withstood due process challenge.                 Traylor v. City
    of Amarillo, 
    492 F.2d 1156
     (5th Cir. 1974).               Far from supporting
    the plaintiffs, GM Leasing thus forecasts, even if it does not
    compel, that a balancing of the public and private interests at
    stake will favor the public interest in nuisance abatement after
    the conclusion of adequate administrative proceedings.
               Not only does plaintiffs’ theory lack support in Supreme
    Court caselaw, but it enjoys only minority support among the
    federal circuits.       The Eighth and Sixth Circuits have found no
    Fourth Amendment bar to warrantless condemnation and eviction
    proceedings, where satisfactory administrative procedures preceded
    them.   Samuels v. Meriwether, 
    94 F.3d 1163
     (8th Cir. 1996); Hroch
    v. City of Omaha, 
    4 F.3d 693
     (8th Cir. 1993); Flatford v. City of
    17 F.3d 162
    , 170 (6th Cir. 1994).                On the other hand, a
    divided   panel    of   the   Ninth   Circuit    held    that    a    warrant   was
    necessary before city officials could enter private property to
    seize previously-condemned automobiles.            Conner v. City of Santa
    897 F.2d 1487
    , 1495 (9th Cir. 1990).              We disagree with Conner
    for reasons stated in Judge Trott’s dissent, 897 F.2d at 1494-98,
    and based on our evaluation of Fourth Amendment reasonableness.
               Although the City did not have to obtain a warrant to
    effectuate      a    valid   seizure    and    demolition       of    the   nuisance
    structures,         the   fundamental       Fourth     Amendment      question    of
    reasonableness remains, a question decided by balancing the public
    and private interests at stake.
               As       the   Supreme   Court    has     acknowledged,     “the   public
    interest demands that all dangerous conditions be prevented or
    abated.”   Camara, 387 U.S. at 537, 
    87 S. Ct. 1735
    .                   Regulation of
    nuisance properties is at the heart of the municipal police power.14
    It is eminently reasonable for a city to prescribe minimum property
    maintenance     standards      to   protect    the     public   and    to   maintain
    adjacent land values.          Nevertheless, a city may not arbitrarily
    enter abatement orders or declare the existence of nuisances with
              While the Supreme Court has not specifically defined the
    scope of the police power, it has reaffirmed the “classic
    statement” of the rule:
         ‘To justify the State in . . . interposing its authority
         in behalf of the public, it must appear, first, that the
         interests of the public . . . require such interference;
         and, second, that the means are reasonably necessary for
         the accomplishment of the purpose, and not unduly
         oppressive upon individuals.’    Even this rule is not
         applied with strict precision, for this Court has often
         said that ‘debatable questions as to reasonableness are
         not for the courts but for the legislature. . . .’
    Goldblatt v. Town of Hempstead, 
    369 U.S. 590
    , 594-95, 
    82 S. Ct. 987
    , 990 (1962)(citations omitted).
    no underlying standards.       Texas law forbids such actions,15 and the
    City’s    ordinance      exemplifies     the    state   statutes’    criteria.
    Contrary to the landowners’ argument, Dallas’s minimum standards
    for property owners assure structural soundness, public health and
    safety and    human   habitability.          The   Dallas   ordinance    is   not
    concerned with aesthetic or non-functional values.              The ordinance
    falls well within the City’s         police power and thus within a sphere
    that courts have traditionally been reluctant to invade.
               Prescription of standards necessitates their enforcement,
    and it is also reasonable that nuisance abatement be one of the
    enforcement mechanisms available to the City.               While abatement is
    permissible, however, the City ordinance affords property owners
    the opportunity to contest the determination of non-compliance, to
    repair their      property,   or   to    seek   other   remedies.       Dallas’s
    procedures include reasonable notice to and time limits upon
    landowners’    actions,     multiple     hearing    possibilities,      flexible
    remedies, and judicial review in state court under typical criteria
    for review of administrative actions.16                 That these standards
    comport    with    due     process      suggests    the     Fourth   Amendment
    reasonableness of the URSB’s final remedial orders.
               See generally, Tex. Loc. Govt. Code, Tit. 2, Subtitle D,
    ch. 54.
              Indeed, the grounds for state court judicial review are
    nearly identical to those standards employed historically by courts
    in reviewing nuisance decisions, i.e. the decisions on which
    plaintiffs seek to build the edifice of their warrant requirement.
               With regard to the landowners’ interests, the Fourth
    Amendment protects only those expectations of privacy that society
    recognizes as “legitimate”.         New Jersey v. T.L.O., 
    469 U.S. 325
    105 S. Ct. 733
    , 741 (1984).       “What expectations are legitimate
    varies, of course, with context . . . [and] . . . may depend upon
    the individual’s legal relationship with the State”. Vernonia, 515
    U.S. at 654, 115 S. Ct. at 2391.              Because the Dallas nuisance
    standards are straightforward and the administrative procedure is
    adequate, these property owners’ expectation of privacy in the
    nuisance structures after the remedial orders became final was
    severely   diminished.        As    vacant    commercial    properties,       the
    structures    were    not   subject   to     the   same   degree   of    privacy
    protection as non-business property.           New York v. Burger, 
    482 U.S. 691
    , 700, 
    107 S. Ct. 2636
    , 2642 (1987); O’Connor v. Ortega, 
    480 U.S. 709
    , 725, 
    107 S. Ct. 1492
    , 1501 (1987).               Further, nearly a
    year had     passed   since   the   plaintiffs     were   informed      of   their
    structures’ non-compliance.           While they did defend themselves
    before the URSB, they made no significant progress in remedying
    violations whose total repair cost was nearly $200,000.                  Whereas
    the landowners in Soldal were the victims of non-judicial eviction
    without prior notice, these plaintiffs had ample notice and a full
    panoply of administrative remedies.                Finally, since the rent
    properties were uninhabited, the demolition, unlike the eviction
    carried out in Soldal, did not invade anyone’s personal privacy.
                   Requiring an administrative warrant of some sort after
    the URSB proceedings would not have enhanced the landowners’
    security or privacy.        A Camara warrant could be sought ex parte; it
    could     be    obtained    solely    on     the   basis   of   the     completed
    administrative record; no requirements of pre- or post-warrant
    notification of the City’s intended actions were necessary. If the
    purpose of a warrant is to obtain some neutral review of the URSB
    orders, this procedure is less protective of the landowners than
    existing judicial review in state court.
                   The ultimate test of reasonableness is fulfilled in this
    case by the City’s adherence to its ordinances and procedures as a
    prelude    to    ordering    the   landowners      to   abate   their    nuisance
    structures.17         The    Supreme       Court   originally     extended     an
    administrative warrant requirement to civil investigations because
    “the basic purpose of [the Fourth] Amendment . . . is to safeguard
    the privacy and security of individuals against arbitrary invasions
    by governmental officials.”          Camara, 387 U.S. at 528, 87 S. Ct. at
              In reaching this conclusion, we do not ignore Soldal’s
    mandate that a particular government action may implicate more than
    one constitutional provision. Soldal, 506 U.S. at 70, 113 S. Ct.
    at 538. A particular nuisance determination might be reviewable
    under the Takings Clause or Substantive Due Process as well as the
    Fourth Amendment or Procedural Due Process standards. John Corp.
    v. City of Houston, 
    214 F.3d 573
     (5th Cir. 2000). But the 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 ordinances have been fulfilled. See Samuels, 94 F.3d at
    1730 (emphasis added); see also Marshall, 436 U.S. at 312, 98 S.
    Ct. at 1820. Whatever else the City’s enforcement of its municipal
    habitation code might be, it is sufficiently hedged about by
    published standards, quasi-judicial administrative proceedings, and
    flexible remedies that it is not arbitrary.     In the context of
    reviewing civil administrative and regulatory enforcement of laws
    enacted pursuant to the traditional police power, Fourth Amendment
    reasonableness means non-arbitrariness.   The Fourth Amendment was
    not violated here.18
              For all these reasons, we conclude that the seizure and
    demolition of the plaintiffs’ apartment buildings, after those
    structures were condemned according to City ordinance and state
    law, were reasonable under the Fourth Amendment.      The judgment
    against the City is REVERSED.
               Cf. Soldal, 506 U.S. at 71, 113 S. Ct. at 549 (“Assuming
    . . . that the [evicting] officers were acting pursuant to a court
    order . . . a showing of unreasonableness would be a laborious task
    indeed.”). Likewise, we believe a showing of unreasonableness in
    the face of the City’s adherence to its ordinance is a “laborious
    task indeed.”
    DENNIS, Circuit Judge, with whom WIENER, BENAVIDES and STEWART,
    Circuit Judges, join in Part I only, dissenting:
         The en banc majority reaches the conclusion that, while
    binding Supreme Court precedent interpreting the Fourth Amendment’s
    proscription of unreasonable searches would clearly require the
    URSB to secure a warrant from a neutral judicial officer to conduct
    an inspection of the two apartment buildings in the absence of
    consent    or    exigent       circumstances,     the   Fourth     Amendment’s
    proscription of unreasonable seizures, as illumined by the same and
    additional Supreme Court precedent, does not require the URSB to
    secure    such   a   warrant    before    demolishing   the    same    apartment
    buildings.       Unable   to    square   this   anomalous     result   with   the
    language of the Fourth Amendment or Supreme Court jurisprudence,
    I dissent.
                                I. FOURTH AMENDMENT
                         A.   Camara, Soldal, and Freeman
         The Freeman panel majority holding that the URSB violated the
    owners’ Fourth Amendment rights correctly follows the Supreme
    Court’s Fourth Amendment decisions in Soldal v. Cook County, Ill.,
    506 U.S. 56
     (1992), and Camara v. Mun. Court of San Francisco, 
    387 U.S. 523
         In Frank v. Maryland, 
    359 U.S. 360
     (1959) (5-4 decision),
    overruled by Camara, 387 U.S. at 523 (1967), the Court upheld, by
    a five-to-four vote, a state court conviction of a homeowner who
    refused to permit a municipal health inspector to enter and inspect
    his premises without a search warrant.       In his majority opinion,
    Justice Frankfurter suggested that the individual and his private
    property are fully protected by the Fourth Amendment only when the
    individual is suspected of criminal behavior, and that a warrant is
    not required for an administrative inspection because the “power
    [to inspect dwellings to maintain community health] would be
    greatly hobbled by the blanket requirement of the safeguards
    necessary for a search of evidence of criminal acts.”       Id. at 372.
         In Camara, 387 U.S. at 534, the Court expressly overruled
    Frank v. Maryland, holding that under the Fourth Amendment a lessee
    of the ground floor of an apartment building had a constitutional
    right to insist that San Francisco Department of Public Health
    Housing Code inspectors obtain a judicial warrant to inspect his
    premises, and that he could not be constitutionally convicted for
    refusal to consent to the inspection.    The Dallas URSB advances the
    same “public necessity” arguments in support of warrantless, non-
    exigent seizures and destruction of private property that the Court
    firmly   rejected   as   insufficient   to   uphold   San   Francisco’s
    warrantless, non-exigent housing code inspections in Camara.        San
    Francisco argued that (i) the ordinances authorizing inspections
    are hedged with safeguards and the inspector’s decision to enter
    must comply with the standard of reasonableness even if he may
    enter without a warrant, id. at 531; (ii) the warrant process could
    not function effectively in this field, id. at 532; and (iii) the
    public interest demands warrantless administrative searches as the
    only effective means of enforcing minimum fire, housing, and
    sanitation standards, id. at 533.          As Justice White, writing for
    the Camara majority, explained:
              In our opinion, these arguments unduly discount the
         purposes behind the warrant machinery contemplated by the
         Fourth Amendment.      Under the present system, when the
         inspector demands entry, the occupant has no way of
         knowing   whether   enforcement         of   the    municipal     code
         involved requires inspection of his premises, no way of
         knowing the lawful limits of the inspector’s power to
         search, and no way of knowing whether the inspector
         himself is acting under proper authorization.              These are
         questions which may be reviewed by a neutral magistrate
         without any reassessment of the basic agency decision to
         canvass an area. . . .      We simply cannot say that the
         protections provided by the warrant procedure are not
         needed in this context; broad statutory safeguards are no
         substitute for individualized review, particularly when
         those safeguards may only be invoked at the risk of a
         criminal penalty.
              . . . It has nowhere been urged that fire, health,
         and housing code inspection programs could not achieve
         their goals within the confines of a reasonable warrant
         requirement.   Thus,   we   do    not    find      the   public   need
         argument dispositive.
              In summary, we hold that administrative searches of
         the kind at issue here are significant intrusions upon
         the interests protected by the Fourth Amendment, that
         such searches when authorized and conducted without a
         warrant procedure lack the traditional safeguards which
         the Fourth Amendment guarantees to the individual, and
         that the reasons put forth in Frank v. State of Maryland
         and   in    other      cases   for   upholding    these     warrantless
         searches are insufficient to justify so substantial a
         weakening of the Fourth Amendment’s protections.
    Id. at 532-34.
         Thus, Camara held that, in the absence of consent or an
    emergency situation, the Fourth Amendment requires that a warrant
    be issued by a judicial officer before a government entity may
    inspect private property to enforce minimum health and safety
    standards for the prevention of “fires and epidemics” or “unsightly
    conditions adversely affect[ing] the economic values of neighboring
    structures.”         Id. at 534, 535, & 539-40.
         In the second part of its opinion, the Court in Camara
    discussed the type of “probable cause” required for a warrant to
    enter and inspect private property.               The Court concluded that “‘a
    health official need [not] show the same kind of proof to a
    magistrate      as    one   must    who   would   search   for    the   fruits   or
    instrumentalities of crime.’”             Id. at 538 (quoting Frank, 359 U.S.
    at 383) (Douglas, J., dissenting)).               Instead, the satisfaction of
    reasonable legislative or administrative standards for inspections
    may be used to show “probable cause,” such as the passage of time,
    the nature of the buildings, the condition of the entire area, or
    other factors not necessarily dependent upon specific knowledge of
    the condition of a particular dwelling. See id. “[R]easonableness
    is still the ultimate standard.      If a valid public interest
    justifies the intrusion contemplated, then there is probable cause
    to issue a suitably restricted warrant.”   Id. at 539.19
         In Soldal, 506 U.S. at 61, the Court held that the presence of
    deputy sheriffs for the purpose of forestalling the Soldal family’s
    resistance while a trailer park operator seized and removed the
    family’s house trailer from the park, without a warrant, eviction
    judgment, other judicial order, or exigent circumstances, clearly
    implicated the Soldals’ Fourth Amendment rights.   In an unanimous
    opinion by Justice White, the Court rejected the Seventh Circuit’s
    narrow reading of the Amendment, which the Circuit construed as
    safeguarding only privacy and liberty interests while leaving
    unprotected possessory interests when neither privacy nor liberty
    is at stake.   Id. at 62.   The Court held that “[t]he Amendment
    protects the people from unreasonable searches and seizures of
    ‘their persons, houses, papers, and effects.’ This language surely
    cuts against the novel holding below, and our cases unmistakably
    hold that the Amendment protects property as well as privacy.”   Id.
           In See v. City of Seattle, 
    387 U.S. 541
     (1967), decided the
    same day as Camara, the Court held that the Fourth Amendment
    forbids warrantless inspections of commercial structures as well as
    private residences. “[T]he basic component of a reasonable search
    under the Fourth Amendment–that it not be enforced without a
    suitable warrant procedure–is applicable in this context, as in
    others, to business as well as to residential premises.” Id. at
    The Court pointed to its decisions explaining that a “seizure” of
    property occurs when “‘there is some meaningful interference with
    an individual’s possessory interests in that property,’” id. at 61
    (quoting United States v. Jacobsen, 
    466 U.S. 109
    , 113 (1984)), and
    concluded: “We fail to see how being unceremoniously dispossessed
    of one’s home in the manner alleged to have occurred here can be
    viewed as anything but a seizure invoking the protection of the
    Fourth Amendment.”   Id.
         The Court in Soldal stopped short of deciding whether the
    seizure was a violation of the Fourth Amendment because the Seventh
    Circuit had failed to reach that issue due to its incorrect
    decision that there had been no “seizure.”    A careful reading of
    the Court’s unanimous Soldal opinion, however, strongly suggests
    that a violation had occurred under Fourth Amendment law because
    (1) the dispossession of the Soldals of their trailer home was a
    “seizure” because it was a “meaningful interference” with their
    possessory interest, id. at 61, not an insignificant interference
    associated with a “garden-variety” landlord-tenant or commercial
    dispute, id. at 72; (2) the deputies were acting under color of
    state law in assisting in the seizure, id. at 60 n.6 & 71; (3) the
    officers were not acting pursuant to a warrant or other judicial
    order, id. at 58 and 71; (4) there was no probable cause to
    associate the seized property with criminal activity, id. at 68;
    and (5) there was no emergency situation because the seizure could
    have “properly awaited the state court’s judgment,” id. at 71.
         The     Court   noted   that   the    Seventh   Circuit   had   correctly
    acknowledged that, under the Supreme Court’s precedents, the Fourth
    Amendment’s protection applies in the civil as well as the criminal
    context.     Id. at 67.      But the Supreme Court concluded that the
    Circuit had erred when it seemingly construed the Amendment to
    protect only against seizures that are the outcome of a search.
    Id. at 68.    “[O]ur cases are to the contrary and hold that seizures
    of property are subject to Fourth Amendment scrutiny even though no
    search within the meaning of the Amendment has taken place.”              Id.
    The Supreme Court explained that the Seventh Circuit’s construction
    of the Fourth Amendment to protect only against seizures that are
    the outcome of a search is at odds with the Supreme Court’s plain-
    view cases in which seizures of property are subject to Fourth
    Amendment scrutiny even though no search within the meaning of the
    Amendment has taken place.          Id. at 68 (citing United States v.
    Jacobsen, 466 U.S. at 120-25; United States v. Place, 
    462 U.S. 696
    706-07 (1983); Cardwell v. Lewis, 
    417 U.S. 583
    , 588-89 (1974)).
    “For the plain-view cases clearly state that, notwithstanding the
    absence of any interference with privacy, seizures of effects that
    are not authorized by warrant are reasonable only because there is
    probable cause to associate the property with criminal activity.”
    Id. at 69.
        Significantly, the Court also made it clear that the Fourth
    Amendment protections are triggered when a government entity seizes
    a building to enforce compliance with housing regulations, stating:
         In our view, the reason why an officer might enter a
         house or effectuate a seizure is wholly irrelevant to the
         threshold question whether the Amendment applies. What
         matters is the intrusion on the people’s security from
         governmental interference.           Therefore, the right against
         unreasonable seizures would be no less transgressed if
         the seizure of the house was undertaken to collect
         evidence, verify compliance with a housing regulation,
         effect an eviction by the police, or on a whim, for no
         reason at all.      As we have observed on more than one
         occasion,   it    would   be    “anomalous        to     say   that   the
         individual and his private property are fully protected
         by the Fourth Amendment only when the individual is
         suspected of criminal behavior.”
    Id. at 69 (quoting Camara, 387 U.S. at 530).20
         Finally, the Court in Soldal characterized as “exaggerated”
    the fears of the Seventh Circuit and Cook County that applying the
    Fourth Amendment in this context will federalize areas of law
    traditionally    the   concern      of        the   states,    such   as   routine
           See also United States v. Jacobsen, 466 U.S. at 125 n.28
    (relied on prominently in Soldal, in which the Court issued the
    following caveat: “Of course, where more substantial invasions
    [than taking a trace of powder for a chemical test] of
    constitutionally protected interests are involved, a warrantless
    search or seizure is unreasonable in the absence of exigent
    circumstances.” (citing Steagald v. United States, 
    451 U.S. 204
    (1981); Payton v. New York, 
    445 U.S. 573
     (1980); Dunaway v. New
    442 U.S. 200
     (1979); United States v. Chadwick, 
    433 U.S. 1
    repossessions, negligent actions of public employees that interfere
    with individuals’ right to enjoy their homes, and the like.            Id. at
    71.   The Court’s opinion expressly or impliedly indicates several
    reasons for this conclusion: (1) activities by state actors such as
    repossessions or attachments that involve entry into the home,
    intrusion on individuals’ privacy, or interference with their
    liberty, have long been recognized as implicating Fourth Amendment
    rights; (2) if the state action does not involve privacy or liberty
    interests,“‘reasonableness is still the ultimate standard[. If a
    valid public interest justifies the intrusion contemplated, then
    there is probable cause to issue a suitably restricted search
    warrant.]’”     Id. (quoting Camara, 387 U.S. at 539) (bracketed
    material added.    See Camara, 387 U.S. at 539).             Thus, generally
    speaking, a state officer will not violate the Fourth Amendment
    when his acts under color of law are (a) pursuant to a warrant or
    other   judicial   or   court    order,     see   id.;   (b)   in   emergency
    situations, see Camara, 387 U.S. at 539; or (c) insignificant
    interferences   associated      with    “garden   variety”     commercial   or
    landlord-tenant disputes, Soldal, 506 U.S. at 72, rather than “some
    meaningful interference with an individual’s possessory interests
    in . . . property.”     Id. at 61 (quoting Jacobsen, 466 U.S. at 113).
    For these reasons, it is evident that, if the Court in Soldal had
    been required to reach the issue, it would have concluded that the
    seizure in which the Soldals were “unceremoniously dispossessed” of
    their trailer home, without a warrant, eviction judgment, or other
    judicial    order,      and   in    the      absence   of    any   emergency,    was   a
    violation of the Soldals’ Fourth Amendment rights.21
                 Correspondingly,             the      Dallas    URSB’s    seizure     and
    destruction        of   the   private         property      owners’   edifices    were
    “meaningful interferences” with their possessory interests in their
    buildings, not a “garden-variety” commercial or landlord-tenant
    controversy.       On the contrary, it was a seizure and destruction of
    private property that was at least as invasive as the removal of a
    house trailer from a trailer park or the seizure of a building
    “undertaken to collect evidence, verify compliance with a housing
    regulation, effect an eviction by the police, or on a whim, for no
    reason at all.”           Soldal, 506 U.S. at 69.                  Consequently, the
    administrative seizures and demolitions by the URSB at issue in the
    present case were significant intrusions upon the interests of
    private property owners protected by the Fourth Amendment, and such
    seizures and demolitions by the URSB, a government entity acting
    under color of state law, not pursuant to a judicial warrant or
    court     order,    and   not      in   an      emergency    situation,   are    clear
           On remand, in light of the Supreme Court’s decision, the
    district court concluded that the defendants were not entitled to
    qualified immunity. “Because we determine that plaintiffs’
    allegations support an inference that the defendants were aware of
    circumstances making their actions unreasonable, and hence,
    illegal, we refuse to dismiss the action.” Soldal v. County of
    Cook, No. 88C7654, 
    1993 WL 199050
    , *5 n.1 (N.D. Ill. June 10,
    violations of the Fourth and Fourteenth Amendments.                  See Camara,
    387 U.S. at 534; Soldal, 506 U.S. at 66-67.
    B. This Court Is Bound By Camara and See, Not Frank v. Maryland
          A Federal Court of Appeals is bound by the decisions of the
    Supreme Court, even if the intermediate appellate judges think that
    a Supreme Court decision is unsound or in error.                 See Thurston
    Motor Lines, Inc. v. Jordan K. Rand, Ltd., 
    460 U.S. 533
    , 535
    (1983); Hutto v. Davis, 
    454 U.S. 370
    , 375 (1982); Jaffree v.
    705 F.2d 1526
    , 1532-33 (11th Cir. 1983)(citing and quoting
    Stell v. Savannah-Chatam County Bd. of Educ., 
    333 F.2d 55
    , 61 (5th
    Cir. 1964), overruled in part on other grounds by United States v.
    Jefferson County Bd. of Educ., 
    380 F.2d 385
     (1967)); United States
    v. Twin City Power Co. of Georgia, 
    253 F.2d 197
    , 205 (5th Cir.
    1958); Marcello v. Ahrens, 
    212 F.2d 830
    , 839 (5th Cir. 1954), aff’d,
    349 U.S. 302
     (1955).         Accordingly, this court must follow Camara
    and   See,   which    held   that,   because    of    the   Fourth    Amendment,
    administrative       entry   or   invasion     of    private   residential    or
    commercial property, without consent or an emergency situation, may
    only be compelled within the framework of a suitable judicial
    warrant procedure.
          Nevertheless, the majority concludes that the district court
    and the panel Fourth Amendment majority were wrong in holding that
    the URSB violated the building owners’ Fourth Amendment rights by
    seizing and destroying their private property without consent or a
    warrant   and     in    the   absence    of     exigent    circumstances.       This
    conclusion    is    based     on   a   common    theme,     (i)   that   the   Fourth
    Amendment does not require a judicial warrant procedure to protect
    individuals from meaningful interferences with their possessory
    interests    in    private     property    by    governmental      entities;    (ii)
    instead, the Amendment only protects such individuals by the
    deterrent effects of reparations under § 1983 if it is determined
    ex   post facto        that   private   property     was    seized   or   destroyed
    “unreasonably” according to a standard of reasonableness or a
    balancing of private and public interests. In effect, the majority
    seems to think that the warrant requirements of Camara and See have
    been overruled and Frank v. Maryland’s warrantless standard of
    reasonableness has been resurrected in their place.
          Similarly, the majority’s reasoning erroneously suggests that
    Justice White’s references in part III of Soldal to Camara and New
    Jersey v. T.L.O., 
    469 U.S. 325
     (1985), somehow signal approval of
    warrantless       seizures    of   private      property,    without     consent   or
    exigent circumstances, by officers acting under color of law, so
    long as the officers comply with a standard of reasonableness
    reflecting a careful balancing of public and private interests.
    The passage containing those references, part of Justice White’s
    explanation that Soldal’s interpretation of the Fourth Amendment
    involves little or no risk of federalizing state law, states:
          More significantly, “reasonableness is still the ultimate
          standard” under the Fourth Amendment, Camara, supra, 387
         U.S.,   at    539,    87    S.Ct.,   at     1736,     which   means     that
         numerous       seizures       of     this       type     will        survive
         constitutional        scrutiny.           As     is    true     in    other
         circumstances,        the   reasonableness          determination      will
         reflect a "careful balancing of governmental and private
         interests."     T.L.O., supra, 469 U.S., at 341, 105 S.Ct.,
         at 742.      Assuming, for example, that the officers were
         acting pursuant to a court order, as in Specht v. Jensen,
    832 F.2d 1516
     (CA10 1987), or                  Fuentes v. Shevin, 
    407 U.S. 67
    92 S. Ct. 1983
    32 L. Ed. 2d 556
     (1972), and as
         often would be the case, a showing of unreasonableness on
         these facts would be a laborious task indeed.                   Cf.    Simms
         v. Slacum, 3 Cranch 300, 301, 
    2 L. Ed. 446
     (1806).                     Hence,
         while   there    is    no    guarantee      against     the     filing   of
         frivolous suits, had the ejection in this case properly
         awaited the state court's judgment it is quite unlikely
         that the federal court would have been bothered with a §
         1983 action alleging a Fourth Amendment violation.
    Soldal, 506 U.S. at 71.
         A careful reading of the complete passages from which Justice
    White quoted in the forgoing paragraph shows that he, as the author
    of Camara, T.L.O., and Soldal, did not in any of those passages
    suggest dispensing with the warrant procedure. To the contrary, he
    consistently repeated the idea he expressed for the Court in
    Camara, “that a health official need not show the same kind of
    proof to a magistrate to obtain a warrant as one must who would
    search for the fruits or instrumentalities of crime.”                      Camara, 387
    U.S. at 538.      Later in Camara, in the passage partially quoted in
    Soldal, Justice White stated: “The warrant procedure is designed to
    guarantee that a decision to search private property is justified
    by a reasonable governmental interest. But reasonableness is still
    the ultimate standard.   If a valid public interest justifies the
    intrusion contemplated, then there is probable cause to issue a
    suitably restricted search warrant.”   Id. at 539.   The same day in
    See, he expressed these ideas in a different way:
         The agency’s particular demand for access will of course
         be measured, in terms of probable cause to issue a
         warrant, against a flexible standard of reasonableness
         that takes into account the public need for effective
         enforcement of the particular regulation involved.    But
         the decision to enter and inspect will not be the product
         of the unreviewed discretion of the enforcement officer
         in the field.
    See, 387 U.S. at 545 (footnote omitted).        His full sentence
    describing the flexible probable cause concept in T.L.O., reads:
    “Where a careful balancing of governmental and private interests
    suggests that the public interest is best served by a Fourth
    Amendment standard of reasonableness that stops short of probable
    cause, we have not hesitated to adopt such a standard.”     T.L.O.,
    469 U.S. at 341.
         Justice White also wrote for the Supreme Court in Marshall v.
    Barlow’s, Inc., 
    436 U.S. 307
    , 325 (1978), which held that, under
    the warrant clause of the Fourth Amendment, the Occupational Safety
    and Health Act (OSHA) is unconstitutional to the extent that it
    would permit inspections of private businesses by OSHA inspectors
    without a warrant or its equivalent.        He began by reaffirming that
    “[t]he Warrant Clause of the Fourth Amendment protects commercial
    buildings   as   well   as   private    homes”,   id.   at   311,    and   that,
    accordingly, “warrantless searches are generally unreasonable, and
    that this rule applies to commercial premises as well as homes.”
    Id. at 312.   Justice White then discussed Camara and See, and then
    concluded “that unless some recognized exception to the warrant
    requirement applies, See v. City of Seattle would require a warrant
    to conduct the inspection sought in this case.”                  Id. at 313.
    Because of the absence of a recognized exception to the warrant
    requirement – such as pervasively regulated businesses in which
    entrepreneurs voluntarily choose to subject themselves to the full
    arsenal of governmental regulation thereby precluding a reasonable
    expectation of privacy (which is clearly the exception and not the
    rule) – without a warrant a government inspector “stands in no
    better position than a member of the public.”            Id. at 313-15.
         Most important, in Marshall, Justice White expressly rejected
    the Secretary of Labor’s argument that “the enforcement scheme of
    the Act requires warrantless searches, and that the restrictions on
    search discretion contained in the Act and in its regulations
    already protect as much privacy as a warrant would.”                Id. at 315.
    These are precisely the arguments advanced by the City of Dallas
    and accepted by the majority in this case.                   In fact, as the
    following passage aptly demonstrates, these arguments take out of
    context Soldal’s quotation from Camara (“reasonableness is still
    the ultimate standard”) and attribute to it a meaning explicitly
    rejected by Justice White:
                 The     Secretary       thereby      asserts     the        actual
         reasonableness of OSHA searches, whatever the general
         rule against warrantless searches might be.                     Because
         “reasonableness is still the ultimate standard,” Camara
         v. Municipal Court, 387 U.S., at 539, 87 S.Ct., at 1736,
         the Secretary suggests that the Court decide whether a
         warrant is needed by arriving at a sensible balance
         between        the     administrative       necessities        of        OSHA
         inspections and the incremental protection of privacy of
         business owners a warrant would afford. He suggests that
         only a decision exempting OSHA inspections from the
         warrant       clause   would    give    “full     recognition       to   the
         competing public and private interests here at stake.”
                 . . . .
                 We are unconvinced, however, that requiring warrants
         to inspect will impose serious burdens on the inspection
         system or the courts, will prevent inspections necessary
         to enforce the statute, or will make them less effective.
         . . .
    Id. at 315-16.
         Moreover,         Justice      White      makes     crystal     clear           that
    “reasonableness” afforded by the statutory scheme may substitute
    for probable cause to issue the warrant, but it may not substitute
    for the warrant itself:
                 Whether the Secretary proceeds to secure a warrant
         or other process, with or without prior notice, his
         entitlement           to    inspect           will     not     depend      on       his
         demonstrating probable cause to believe that conditions
         in violation of OSHA exist on the premises.                               Probable
         cause in the criminal law sense is not required.                                    For
         purposes         of   an    administrative           search     such      as    this,
         probable cause justifying the issuance of a warrant may
         be based not only on specific evidence of an existing
         violation         but      also     on    a     showing       that    “reasonable
         legislative or administrative standards for conducting an
         .    .    .    inspection         are    satisfied       with       respect     to   a
         particular [establishment].” Camara v. Municipal Court,
         387 U.S., at 538, 87 S.Ct., at 1736. . . . We doubt that
         the consumption of enforcement energies in the obtaining
         of such warrants will exceed manageable proportions.
    Id. at 320-21 (footnote omitted)(bracketed text in original).
         Finally,         Justice        White      rejected       the       notion      “that      the
    incremental         protections        afforded       the    employer’s        privacy         by   a
    warrant       are    so      marginal         that    they        fail    to    justify         the
    administrative burdens that may be entailed.”                            Id. at 322.
                   The authority to make warrantless searches devolves
         almost          unbridled         discretion           upon     executive           and
         administrative officers, particularly those in the field,
         as to when to search and whom to search.                            A warrant, by
         contrast, would provide assurances from a neutral officer
         that the inspection is reasonable under the Constitution,
         is       authorized        by     statute,       and    is     pursuant        to    an
         administrative plan containing specific neutral criteria.
    Id. at 323(footnote omitted).
         Against this background, it is clear that Justice White in the
    Soldal paragraph quoting parts of the Camara and T.L.O. passages
    did not impliedly or silently overrule the principal holding of
    Camara that significant administrative intrusions require a warrant
    procedure, in the absence of consent or an emergency.22 Read within
    the context of the passages from Camara, See, Marshall, and T.L.O.,
    describing the flexible standard of reasonableness, it is clear
    that in that Soldal paragraph Justice White merely expressed the
    opinion that it will be difficult to show a Fourth Amendment
    violation when an officer seizes property pursuant to a court
    order,    if    the   order   was   measured   and   issued   according   to   a
    reasonable standard based on a careful balancing of public and
    private interests.        This meaning is borne out by the citation in
    the Soldal paragraph calling upon the reader to reference Simms v.
    Slacum, 3 Cranch 300, 301, 
    7 U.S. 300
    , 306-07 (1806), in which
    Chief Justice Marshall stated:
                   The judgments of a court of competent jurisdiction,
         although obtained by fraud, have never been considered as
         absolutely void; and, therefore, all acts performed under
              In summary, we hold that administrative
              searches of the kind at issue here are
              significant intrusions upon the interests
              protected by the Fourth Amendment, that such
              searches when authorized and conducted without
              a warrant procedure lack the traditional
              safeguards   which    the   Fourth    Amendment
              guarantees to the individual, and that the
              reasons put forth in Frank v. Maryland and in
              other cases for upholding these warrantless
              searches are insufficient to justify so
              substantial   a   weakening   of   the   Fourth
              Amendment protections.
    Camara, 387 U.S. at 534.
         them are valid so far as respects third persons.            A
         sheriff   who   levies   an   execution   under   a   judgment
         fraudulently obtained, is not a trespasser, nor can the
         person who purchases at a sale under such an execution,
         be compelled to relinquish the property he has purchased.
    7 U.S. at 306-07.
         In short, Camara, See, Marshall, T.L.O., and Soldal all
    indicate that under certain circumstances a flexible standard of
    reasonableness can substitute for the kind of probable cause that
    must be shown by law enforcement officers to obtain a warrant to
    search for criminal evidence; they do not support the notion that
    reasonableness can substitute for the judicial warrant that is
    required before an administrative search or seizure of private
    property without consent or an emergency situation.
         This court cannot legitimately overrule or disregard Camara
    and See, which require a warrant before a municipality can effect
    a search or seizure of private residential or commercial property
    without consent or emergency circumstances under health, safety,
    and building regulations, even if a flexible probable cause or
    reasonableness standard has been met.
         The language upon which the majority relies in arguing that
    Camara and See are inapplicable is taken out of context from the
    “special, beyond normal, law enforcement needs” cases that are
    inapposite here. The cases the majority cites--Vernonia Sch. Dist.
    v. Acton (suspicionless random drug testing of high school athletes
    in a particular exigent factual situation); Griffin v. Wisconsin
    (reasonable grounds search without a warrant of probationer within
    legal custody under state law pursuant to a state regulation
    authorizing    such    warrantless    searches);       New   Jersey    v.   T.L.O.
    (search of student’s purse on suspicion of violation of school rule
    against smoking)--are those in which the Court has “permitted
    exceptions when ‘special needs, beyond the normal need for law
    enforcement,    make    the   warrant       and   probable-cause      requirement
    impracticable.’” Vernonia Sch. Dist. v. Acton, 
    515 U.S. 646
    , 653
    (1995) (citing Griffin v. Wisconsin, 
    483 U.S. 868
    , 873 (1987)).
         The Court in those cases clearly limited the “special needs”
    exception to the warrant requirement to special situations in
    criminal law enforcement: “A State’s operation of a probation
    system, like its operation of a school, government office or
    prison, or its supervision of a regulated industry, likewise
    presents ‘special needs’ beyond normal law enforcement that may
    justify departures from the usual warrant and probable cause
    requirements.”    Griffin, 483 U.S. at 873-74; see also Chandler v.
    520 U.S. 305
     (1997) (Georgia’s requirement that candidates
    for state office pass drug test did not fit within closely guarded
    special   needs        category      of        constitutionally       permissible
    suspicionless searches ); United Teachers of New Orleans v. Orleans
    Parish Sch. Bd., 
    142 F.3d 853
     (5th Cir. 1998) (school board’s rules
    violated Fourth Amendment inasmuch as no special needs exception to
    requirement of individualized suspicion of wrongdoing applied).
         The present case is not a criminal law enforcement case, much
    less a “special needs, beyond the normal need for law enforcement”
    case,   and   it    is   certainly   not    a   case    in   which    the   warrant
    requirement is impracticable.           The majority’s rejection of the
    warrant requirement in this case makes it difficult to say that it
    exists at all in the Fifth Circuit, except for few persons whose
    criminal convictions are reversed because the violation of their
    Fourth Amendment rights was so flagrant as to amount to harmful,
    reversible error.
                             C. This Circuit and Others
         In concluding that the URSB violated the owners’ Fourth
    Amendment rights, the Freeman panel Fourth Amendment majority
    decision followed the controlling precedent of this Circuit, and
    this decision does not conflict with what is the controlling
    precedents of other circuits.
         In United States v. Paige, 
    136 F.3d 1012
    , 1021 (5th Cir. 1998),
    this court recognized that “[t]he Supreme Court recently made clear
    that the protection afforded by the Fourth Amendment extends to an
    individual’s       possessory   interests       in     property,     even   if   his
    expectation    of    privacy    in   that   property      has   been   completely
    extinguished.”      (citing Soldal, 506 U.S. at 62-63).              This court in
    Paige also observed that “[g]enerally, ‘seizures conducted outside
    the    judicial      process,      without     prior   approval      by    a     judge   or
    magistrate,       are        per    se     unreasonable       under        the     Fourth
    Amendment–subject only to a few specifically established and well
    delineated     exceptions.’”         Id.     at     1022   (quoting       Minnesota       v.
    508 U.S. 366
    , 372 (1993)). The Freeman Fourth Amendment
    majority applied Paige’s teachings from the Supreme Court cases of
    United States v. Jacobsen, 
    466 U.S. 109
    , and United States v.
    462 U.S. 696
    , to conclude that the URSB seizures do not fall
    within an exception to the warrant requirement fashioned in those
    cases because the seizures were not lawful and temporary in their
    inception, the seizures did not have a de minimis impact on the
    owners’ property interests, and it could not be said that the
    safeguards of a warrant would have only minimally advanced Fourth
    Amendment interests.           Freeman v. City of Dallas, 
    186 F.3d 601
    , 606
    (5th Cir. 1999).
           The Freeman Fourth Amendment majority is not inconsistent with
    the other Circuits’ leading cases although it is at odds with an
    Eighth Circuit case.           In Flatford v. City of Monroe, 
    17 F.3d 162
    170 (6th Cir. 1994), the Sixth Circuit held that under the Fourth
    Amendment the plaintiffs “were entitled to pre-eviction judicial
    oversight in the absence of emergency circumstances.”                          That court
    also found that the eviction had been predicated upon exigent
    circumstances.        Id. at 170-71.         In Hroch v. City of Omaha, 
    4 F.3d 693
    ,    697   (8th    Cir.    1993),     the      Eighth   Circuit    held       that    the
    defendants’ actions in implementing the City’s condemnation order
    did not constitute an unreasonable seizure in violation of Hroch’s
    Fourth Amendment rights.   The Hroch court pointed out that a state
    court had denied an injunction so that there was judicial oversight
    of the condemnation process which provided “a constitutionally
    adequate substitute for a warrant.”       Id. at 696-97 (citing and
    quoting Donovan v. Dewey, 
    452 U.S. 594
    , 603 (1981)).    In Conner v.
    City of Santa Ana, 
    897 F.2d 1487
    , 1492 (9th Cir. 1990), the Ninth
    Circuit held that a search and seizure of the Conners’ property to
    abate a known nuisance without any judicial authorization was
    impermissible under the Fourth Amendment.       Although Conner was
    decided before Soldal, it is consistent with that decision because
    it relied on Camara, and Soldal did not change Camara; rather,
    Soldal only reaffirmed what had been established before, that the
    Fourth Amendment protects property as well as privacy and may
    protect property interests even when neither privacy nor liberty is
    at stake.   Soldal, 506 U.S. at 62-71.   In Samuels v. Meriwether, 
    94 F.3d 1163
    , 1167-68 (8th Cir. 1996), however, the Eight Circuit
    misread Soldal as overruling Camara sub silentio and replacing the
    warrant process required by Camara with a reasonableness balancing
    test. Soldal does not express or imply such an intention, however,
    and it is absurd to attribute to Justice White, the author of both
    opinions, an intention to overrule       Camara without saying so,
    particularly since he cites and quotes Camara prominently with
    approval in Soldal.
         All of these circuit decisions, except Samuels v. Meriwether,
    are consistent with a correct reading of Camara, See, and Soldal
    which plainly indicate that, in the context of administrative
    searches and seizures, compliance with reasonable legislative and
    administrative standards may serve as probable cause for a warrant,
    but not as a substitute for the warrant procedure itself; see
    Camara, 387 U.S. at 538, 545-46; Soldal, 506 U.S. at 71; although
    nothing forecloses prompt inspections, even without a warrant, that
    the law has traditionally upheld in emergency situations.      See
    Camara, 387 U.S. at 539.
                            D. Other Arguments
         A number of rationales are advanced by the majority that have
    a false appearance of genuineness, but are really only variations
    on their main theme of contention:
         (1) That only self-imposed reasonableness is required of a
    governmental entity in seizing and razing buildings for urban
    renewal, and the municipal procedures followed by the URSB assured
    sufficient reasonableness in this case.   This argument is premised
    upon two faulty propositions: (i) that Fourteenth Amendment due
    process of law and Fourth Amendment reasonableness analyses are
    fungible; and (ii) that Soldal sub silentio overruled Camara and
    its warrant requirement for administrative searches and seizures,
    thereby   resurrecting        Frank   v.     Maryland     and       its    warrantless
    reasonableness standard.          With respect to (i), in Soldal, the
    Supreme Court expressly rejected that proposition, stating that
    “[c]ertain wrongs affect more than a single right and, accordingly,
    can implicate more than one of the Constitution’s commands.                         Where
    such   multiple    violations     are   alleged      .    .    .    we    examine   each
    constitutional provision in turn.”            506 U.S. at 70; see also United
    States v. James Daniel Good Real Prop., 
    510 U.S. 43
    , 49-50 (1993)
    (in considering claims that the same government conduct violated
    both the Fourth Amendment protections against unreasonable seizure
    and the Fifth Amendment protections of due process of law, the
    Court stated that it has repeatedly rejected the view that the
    applicability      of   one    constitutional        amendment           preempts    the
    guarantees of another).          Flatford, 17 F.3d at 170-71, does not
    support   the     argument    either,      because   it,       in    effect,     merely
    concludes that both the Fourth Amendment and Due Process standards
    are relaxed where the conduct complained of is justified by exigent
    circumstances.       With respect to (ii), as demonstrated earlier,
    Soldal, a unanimous opinion by Justice White, building on and
    citing with approval his own opinion for the court in Camara,
    cannot reasonably be read to implicitly or silently overrule
    Camara’s core holding that, in the absence of consent or exigent
    circumstances,     administrative       searches     or       seizures      of   private
    houses or buildings without a judicial warrant violate the Fourth
    Amendment, and that Frank v. Maryland is expressly overruled.
         (2) That the URSB is the functional equivalent of a neutral
    and detached judicial officer.    The fallacy of this contention is
    self-evident.   The URSB is an agency of the City of Dallas charged
    with the remediation – including the demolition--of structures
    deemed by it to constitute urban nuisances.       The URSB’s job is to
    eliminate unsightly conditions adversely affecting the economic
    value of neighboring property and the City’s tax base.         The URSB
    cannot possibly serve effectively in this executive capacity and
    act as a neutral and detached magistrate to safeguard the rights of
    the owners whose buildings it determines should be razed.         “When
    the right of privacy must reasonably yield to the right of search
    is, as a rule, to be decided by a judicial officer, not by a
    policeman or government enforcement agent.”        Camara, 387 U.S. at
    529 (citing and quoting Johnson v. United States, 
    333 U.S. 10
    , 14
    (1948)).   This principle applies with equal force to the seizure
    and destruction of real property by government enforcement agencies
    such as the URSB, because the decision to seize and destroy private
    property under these circumstances, like the decision to enter and
    inspect, “[can]not be the product of unreviewed discretion of the
    enforcement officer in the field.”         Id. at 545.      Rather, the
    “warrant   machinery   contemplated   by   the   Fourth   Amendment”   so
    prominently emphasized by Justice White is necessarily administered
    by a “neutral magistrate.”     See Camara, 387 U.S. at 532; Marshall,
    436 U.S. at 323.
           (3) That the warrant process would overburden the URSB.          This
    argument was rejected firmly by the Supreme Court in Camara, see
    387 U.S. at 532, and again in Marshall, 436 U.S. at 321.         Moreover,
    the step of securing a warrant issued by a neutral and detached
    judicial officer is not difficult or time consuming.          The property
    owner benefits greatly from the safeguarding of his protected
    interests that can only be provided by a neutral judicial officer’s
    pre-execution approval of the seizure and demolition.                 In the
    present case, as is typical, almost a year passed between the
    notices of noncompliance and the ultimate demolition orders.             Had
    the URSB    at   the   appropriate   time   during   this   lengthy   period
    properly obtained a warrant for the seizure and demolition of the
    owners’ buildings, it is almost certain that the federal court
    would not have been bothered with this § 1983 action alleging a
    Fourth Amendment violation.
           (4) That Texas currently has no procedural mechanism for
    judicial oversight of public nuisance abatement.               However, it
    appears that such oversight is provided for by Texas legislated
    law.    See Tex. Gov’t. Code Ann. §§ 24.08 (district court may hear
    and determine any cause cognizable by courts of law or equity), and
    24.011 (district court judge may grant all writs necessary to
    enforce the court’s jurisdiction). Moreover, judicial oversight of
    public nuisance abatement in the context of this case is required
    by Texas jurisprudence.          See City of Houston v. Lurie, 
    224 S.W.2d 871
    , 874 (Tex. 1949) (“It has been repeatedly held that the
    question whether property is a public nuisance and may be condemned
    as such is a justiciable question to be determined by a court.”);
    Hart v. City of Dallas, 
    565 S.W.2d 373
    , 379 (Tex.Civ.App.-Tyler
    1978, no writ) (whether the URSB or the city council made the
    determination that the house was a hazard to the health, safety,
    and welfare of the citizens, “the City would have been without
    authority to demolish the house in the absence of a judicial
    determination that the house was a nuisance in fact.”).                Moreover,
    even    if        the   Texas    courts    lacked      express   statutory     or
    jurisprudential authority to issue warrants for the search or
    seizure      of    property,    undoubtedly    they    are   endowed   with   such
    authority by the Fourth Amendment, the State Constitution, and
    their inherent judicial powers.
                                     II.   DUE PROCESS
           The plaintiffs cross-appealed the district court’s ruling
    against their Fifth Amendment claim.             I dissent from the en banc
    majority’s decision, affirming summary judgment in favor of the
    City of Dallas on the due process claim for the same reasons that
    I dissented from the panel’s decision.                See Freeman, 186 F.3d at
    612-14 (Dennis, dissenting).
         A governmental seizure of a person’s property implicates two
    explicit textual sources of constitutional protection, the Fourth
    and Fifth Amendments.   James Daniel Good Real Prop., 510 U.S. at
    49-50; Soldal v. Cook County, 506 U.S. at 61, 70-71.   Although the
    decision in James Daniel Good Real Property was based upon the
    procedural protections of the Fifth Amendment’s Due Process Clause,
    the similarly worded procedural protections of the Fourteenth
    Amendment’s Due Process Clause apply with equal force to states and
          The Supreme Court has held that the Fourteenth Amendment’s
    Due Process Clause “legitimately operates to extend to the citizens
    and residents of the States the same protection against arbitrary
    state legislation, affecting life, liberty and property, as is
    offered by the Fifth Amendment against similar legislation by
    Congress.” Hibben v. Smith, 
    191 U.S. 310
    , 325 (1903). Of the
    guarantees of the Fifth Amendment, only the grand jury clause has
    been held not to be applicable to the states. 2 Ronald D. Rotunda
    & John E. Nowak, Treatise on Constitutional Law § 14.2, at 347-48
    (2d ed. 1992) (citing Hurtado v. California, 
    110 U.S. 516
    The Fifth Amendment prohibitions of compulsory self-incrimination
    and double jeopardy were made applicable to the states in Malloy v.
    378 U.S. 1
     (1964), and Benton v. Maryland, 
    395 U.S. 784
    (1969), respectively. In addition, although the Fifth Amendment’s
    just compensation provision has not “technically” been incorporated
    against the states, “the Court has held that the fourteenth
    amendment due process guarantee provides the same safeguard against
    a state’s taking of property without just compensation.” 2 Rotunda
    & Nowak, supra, § 14.2, at 350 (citing Chicago B. & Q. R. Co. v.
    166 U.S. 226
     (1897)). See also Hurtado v. California, 
    110 U.S. 516
    , 541 (1884) (Harlan, J., dissenting) (“[T]he            5th
    [amendment] provided that ‘no person shall be deprived of life,
    liberty or property, without due process of law.’ This language is
    similar to that of the clause of the 14th amendment now under
    examination. That similarity was not accidental, but evinces a
    purpose to impose upon the States the same restrictions, in respect
    of proceedings involving life, liberty and property, which had been
    imposed upon the General Government.”).
         The City does not, and could not, dispute that the seizure and
    destruction of the plaintiffs’ real property deprived them of
    property       interests   protected     by     the     Fifth   and   Fourteenth
    Amendments’ Due Process Clauses.             The City argues, however, that a
    hearing before a panel of the City’s own Urban Rehabilitation
    Standards Board afforded the plaintiffs all the process they were
    due before their property was seized and destroyed. I believe that
    in the absence of an extraordinary situation, which did not exist
    in the present case, the Due Process Clauses require that, before
    a person is deprived of his real property by the government, he
    must be given notice and an opportunity for a meaningful hearing
    before a neutral magistrate, and that there must be a judicial
    determination that the seizure is justified.
         Where the government seizes property not to preserve evidence
    of criminal wrongdoing but to assert ownership and control over the
    property,      its   action   must    also     comply    with   the   procedural
    protections of the Due Process Clauses of the Fifth and Fourteenth
    Amendments.       James Daniel Good Real Prop., 510 U.S. at 50.                 The
    Supreme Court’s precedents establish the general rule that Due
    Process requires that, absent an extraordinary situation, a party
    cannot invoke the power of the state to seize a person’s property
    without    a    prior   judicial     determination      that    the   seizure   is
    justified.      United States v. $8,850, 
    461 U.S. 555
    , 562 n.12 (1983)
    (citing Boddie v. Connecticut, 
    401 U.S. 371
    , 378-379 (1971)); see
    also North Georgia Finishing, Inc. v. Di-Chem, Inc., 
    419 U.S. 601
    (1975); Fuentes v. Shevin, 
    407 U.S. 67
     (1972); Sniadach v. Family
    Finance Corp., 
    395 U.S. 337
     (1974); Mitchell v. W.T. Grant Co., 
    416 U.S. 600
     (1974).    Due Process also requires that individuals must
    receive notice and an opportunity to be heard before the government
    deprives them of property.       James Daniel Good Real Prop., 510 U.S.
    at 48 (citing $8,850, 461 U.S. at 562 n. 12; Fuentes, 407 U.S. at
    82; Sniadach, 395 U.S. at 342 (Harlan, J., concurring); Mullane v.
    Cent. Hanover Bank & Trust Co., 
    339 U.S. 306
    , 313 (1950)).
         In James Daniel Good Real Property, the Supreme Court held
    that, in the absence of exigent circumstances, the Due Process
    Clause requires the government to afford notice and a meaningful
    opportunity to be heard in an adversary hearing, to ensure the
    requisite neutrality that must inform governmental decisionmaking,
    before seizing real property subject to civil forfeiture. 510 U.S.
    at 48, 53-56.      The protection of an adversary hearing before a
    neutral magistrate is of particular importance where the government
    has a direct pecuniary interest in the outcome of the proceeding.
    Id. at 55-56.      In James Daniel Good Real Property, the Supreme
    Court emphasized that “[t]he constitutional limitations we enforce
    in this case apply to real property in general, not simply to
    residences.”    Id. at 61.
         Accordingly,    the   Due   Process   requirements   of   notice,   a
    meaningful adversary hearing before a neutral magistrate, and a
    judicial determination of justification must be afforded to a
    person before his real property is seized and destroyed in order to
    abate or rehabilitate an “urban nuisance.”                 In a case such as the
    present one, there is need for equally rigorous adherence to the
    principles of Due Process as in civil forfeitures of real property.
    The City of Dallas has pecuniary interests in the outcome of such
    proceedings,     e.g.,   justification       for      federal    and    state   urban
    renewal grants; enhancement of the municipal tax base by promoting
    the replacement of old buildings with new ones.                        The need for
    safeguards against arbitrary, capricious, or unreasonable seizures
    based on    subjective    standards        may   be    even   greater     in    “urban
    nuisance” or “urban rehabilitation” cases.                      Moreover, a post-
    seizure hearing cannot provide any remedy in such cases because the
    destroyed property cannot be restored and the best evidence of
    whether the seizure was justified will have been demolished also.
    It is not necessary to accomplish the City’s legitimate goals of
    urban rehabilitation that an owner whose real property the City
    proposes to destroy be deprived of an opportunity for a meaningful
    pre-seizure adversary hearing before a neutral and impartial judge
    or   magistrate.       Requiring     the    City      to   postpone     seizure    and
    destruction until after such a hearing and judicial determination
    that the seizure is justified creates no significant administrative
    burden.    And   any   harm   that   results       from    delay   is    minimal    in
    comparison to the injury occasioned by the erroneous seizure and
    destruction of real property.         Id. at 59.
                                   III. CONCLUSION
         In    summary,   Camara    and   See   require   a   judicial   warrant
    procedure for the administrative search or seizure of private
    property, except in consensual or emergency situations.              Soldal
    does not overrule or modify Camara or See; it simply makes clear
    that the Fourth Amendment protects property as well as privacy and
    liberty.    The Freeman Fourth Amendment majority correctly applied
    Camara, See, and Soldal, and the other circuits’ decisions, except
    for one, are not in conflict with that interpretation. Thus, I
    would affirm the judgment against the City of Dallas.
         Because the process used by the City of Dallas failed to meet
    the requirements of due process as dictated by the Fifth Amendment,
    I would also reverse the judgment for the City of Dallas and would
    grant summary judgment in favor of the plaintiffs on this claim.