California Tow Truck Associati v. City and County of San Francis , 693 F.3d 847 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CALIFORNIA TOW TRUCK 
ASSOCIATION,
Nos. 11-15040
Plaintiff-Appellant-Cross-Appellee,
11-15041
v.
 D.C. No.
CITY AND COUNTY OF SAN 3:10-cv-03184-CRB
FRANCISCO,
OPINION
Defendant-Appellee-
Cross-Appellant.

Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted
February 17, 2012—San Francisco, California
Filed August 27, 2012
Before: Raymond C. Fisher and Sandra S. Ikuta,
Circuit Judges, and J. Michael Seabright,* District Judge.
Opinion by Judge Seabright
*The Honorable J. Michael Seabright, United States District Judge for
the District of Hawaii, sitting by designation.
9687
CALIFORNIA TOW TRUCK v. CITY OF SAN FRANCISCO 9689
COUNSEL
Patrick J. Whalen, Law Offices of Brooks Ellison, Sacra-
mento, California, for plaintiff-appellant-cross-appellee Cali-
fornia Tow Truck Association.
Vince Chhabria, Deputy City Attorney, San Francisco, Cali-
fornia, for defendant-appellee-cross-appellant City and
County of San Francisco.
OPINION
SEABRIGHT, District Judge:
In two comprehensive ordinances, the City and County of
San Francisco requires tow truck drivers to obtain permits to
9690 CALIFORNIA TOW TRUCK v. CITY OF SAN FRANCISCO
operate in San Francisco, and towing firms to obtain permits
to conduct business within San Francisco. The ordinances
include numerous conditions and prerequisites for obtaining
or maintaining towing permits. The California Tow Truck
Association (“CTTA”) filed this action seeking to invalidate
the two ordinances, primarily arguing that the entire “permit
scheme” (as it calls both ordinances) is preempted by federal
law. The district court upheld the permit scheme for “non-
consensual” towing, but enjoined enforcement against those
doing exclusively “consensual” towing and against tow truck
drivers simply “passing through” San Francisco. We now face
cross-appeals.
The CTTA’s challenge to the entire permit scheme neces-
sarily encompasses all of the permit scheme’s components —
each of which may (or may not) be preempted. The district
court analyzed the permit scheme in the way the parties pre-
sented the scheme, as a whole, but without specifically
addressing its individual provisions. In so doing, however, the
district court ran afoul of American Trucking Associations v.
City of Los Angeles, 559 F.3d 1046 (9th Cir. 2009), which
requires “examining the specific provisions” of the permit
scheme. Id. at 1057. Accordingly, we vacate and remand for
further proceedings.
I. BACKGROUND
A. The Permit System
Article 30 of the San Francisco Police Code regulates “tow
car drivers.” See S.F., Cal., Police Code art. 30, §§ 3000-13.
Similarly, Article 30.1 of the S.F. Police Code regulates “tow
car firms.” See id. art. 30.1, §§ 3050-65.1 Together, Articles
1
We use “tow truck” and “tow car” interchangeably, although there are
slight immaterial differences in “tow truck” definitions.
Originally enacted in 1973, Article 30 provides that “ ‘tow car’ is
defined as that term is defined in the Vehicle Code of the State of Califor-
CALIFORNIA TOW TRUCK v. CITY OF SAN FRANCISCO 9691
30 and 30.1 set forth a comprehensive regulatory regime
requiring tow truck drivers and towing firms to obtain permits
to operate and conduct business in San Francisco.2 Together,
we refer to Articles 30 and 30.1 as the “Permit System.”
1. Article 30 — Permit Requirements for Tow Truck
Drivers
Under Article 30, “[n]o person shall drive or operate a tow
car within the City and County of San Francisco without first
obtaining a permit from the Chief of Police.” S.F. Police Code
§ 3000. To obtain a permit, tow truck drivers provide identify-
nia.” S.F. Police Code § 3001. California’s corresponding definition of
“tow car,” however, was amended in 1988 to substitute “truck” for “car”
throughout, see 1988 Cal. Legis. Serv. 924 (West). California now defines
“tow truck” as:
a motor vehicle which has been altered or designed and equipped
for, and primarily used in the business of, transporting vehicles
by means of a crane, hoist, tow bar, tow line, or dolly or is other-
wise primarily used to render assistance to other vehicles. A
“roll-back carrier” designed to carry up to two vehicles is also a
tow truck. A trailer for hire that is being used to transport a vehi-
cle is a tow truck. “Tow truck” does not include an automobile
dismantlers’ tow vehicle or a repossessor’s tow vehicle.
Cal. Veh. Code § 615(a).
2
California also extensively regulates tow trucks, firms, and operations.
See, e.g., Cal. Veh. Code §§ 22513 (regarding stopping of tow trucks on
highways, and soliciting of services at an accident scene), 22651.07
(regarding charges for towing or storage), 22658 (regarding removal of
vehicles from private property), 25253 (regarding warning lights), 27700
(prescribing required equipment for tow trucks), and 29004 (towing and
loading equipment).
There is, however, no specific state-level tow truck permitting system.
Rather, the state has delegated specific tow truck licensing to local enti-
ties. See id. § 21100 (“Local authorities may adopt rules and regulations
by ordinance or resolution regarding the following matters: . . . (g)(1)
Licensing and regulating the operation of tow truck service or tow truck
drivers whose principal place of business or employment is within the
jurisdiction of the local authority . . . .”).
9692 CALIFORNIA TOW TRUCK v. CITY OF SAN FRANCISCO
ing information (e.g., name, residence, height, weight, birth
date, employer, drivers license number), disclose any criminal
arrests, and give “[s]uch other information . . . reasonably
necessary . . . to arrive at a fair determination as to whether
the terms of the ordinance have been complied with.” Id.
§ 3002. Applicants are fingerprinted, provide passport-sized
photographs, and pay a filing fee. Id. § 3003. They must also
provide a letter from an employer. Id.
Upon receipt of an application, the Chief of Police is to
investigate “without unnecessary delay,” and issue a permit,
unless the applicant:
(a) Within four years prior to the date of application,
has been convicted of burglary, robbery, theft,
receipt of stolen property, breaking or removing
parts from a vehicle, malicious mischief to a vehi-
cle[,] unlawful use or tampering by bailee of a vehi-
cle, or altering a vehicle identification number; or
(b) Within four years prior to the date of application,
has acted in violation of the criminal statutes referred
to in Subsection (a) above; or
(c) Has intentionally falsified any statement con-
tained in his application.
Id. § 3004. The tow truck driver must have the permit “at all
times while driving or operating” a tow truck, and show it on
demand to any peace officer. Id. § 3007. A permit lasts for a
year, and is renewable annually upon payment of the annual
fee.3 Id. § 3008. It can be revoked if, after a hearing, the Chief
of Police “finds that grounds exist which would have consti-
tuted just cause for refusal to issue such permit.” Id. § 3011.
“Violation of Sections 3000 [driving or operating a tow truck
3
As of July 2012, the initial permit fee for a tow truck driver was $570,
with an annual license fee of $34. See S.F. Police Code §§ 2.26-.27.
CALIFORNIA TOW TRUCK v. CITY OF SAN FRANCISCO 9693
within San Francisco without a permit] or 3007 [requiring
possession of a permit while driving or operating a tow car]
. . . shall be a misdemeanor, punishable by a fine not to
exceed $500, or by imprisonment in the County Jail for a term
of not more than six months . . . .” Id. § 3012. Article 30 also
contains a severability clause, indicating that if any part of it
is declared unconstitutional or invalid, such a declaration does
not affect the validity of the remaining portions. Id. § 3013.4
2. Article 30. 1 — Permit Requirements for Towing
Firms
Similar to Article 30, Article 30.1 requires a “tow car firm”
to register and obtain a permit to “engage in or conduct busi-
ness as a tow car firm within the City and County of San
Francisco.” Id. § 3050. Originally enacted in 1997, it defines
a “tow car firm” or “towing firm” as “[a]ny person, firm, part-
nership, association, corporation, or any other group or com-
bination acting as a unit, excepting [certain governmental
entities], engaged in the business of transporting, removing,
or storage of motor vehicles, including the owner/operator of
any tow car as herein defined.” Id. § 3051(1).
An applicant5 provides the police department identifying
4
Section 3013 provides:
If any section, subsection, subdivision, paragraph, sentence,
clause or phrase of this Article or any part thereof is for any rea-
son held to be unconstitutional or invalid or ineffective by any
court of competent jurisdiction, such decision shall not affect the
validity or effectiveness of the remaining portions of this Article
or any part thereof. The Board of Supervisors hereby declares
that it would have passed each section, subsection, subdivision,
paragraph, sentence, clause or phrase thereof irrespective of the
fact that any one or more sections, subsections, subdivisions,
paragraphs, sentences, clauses or phrases be declared unconstitu-
tional or invalid or ineffective.
5
With respect to a partnership or corporation, “applicant” is defined as
“at least two of the partners” and “at least two corporate officers” for pur-
poses of this section. See S.F. Police Code § 3051(3).
9694 CALIFORNIA TOW TRUCK v. CITY OF SAN FRANCISCO
information such as name, residence, telephone number, and
driver’s license number, as well as the businesses’ names and
addresses. Id. § 3052(1) & (2). The application must also pro-
vide specific information (e.g., the license plate number, year,
make, model, and color) for each tow truck to be operated by
the business. Id. § 3052(3). It must describe the applicant’s
business plan and proposed services, including days and hours
of operation, storage locations of towed vehicles, and a sys-
tem for handling complaints that is acceptable to the Chief of
Police. Id. § 3052(4). It must also disclose the firm’s tow
truck drivers and permit numbers, and provide evidence of a
minimum level of insurance. Id. § 3052(5) & (6). Further, an
applicant must disclose “all crimes of which the applicant has
been convicted, plead guilty, or plead no contest,” id.
§ 3052(7), and must submit a complete set of fingerprints
taken by the San Francisco Police Department, fingerprinting
and filing fees, and two recent color photographs, see id.
§ 3053.
Upon application, tow firm permits are granted unless the
Chief of Police finds that:
(1) [The] [a]pplicant does not possess or cannot
obtain the minimum amount of bodily injury and/or
property damage insurance as required by the Chief
of Police rules; or
(2) The applicant does not possess the requisite tow
car equipment or facilities reasonably necessary to
operate a tow car business in such a manner as to
adequately protect vehicles of the public that are
towed and stored from damage or theft; or
(3) The applicant has been convicted of theft, petty
theft, theft of a vehicle, breaking or removing vehi-
cle parts, malicious mischief to vehicle, check fraud,
credit card fraud, driving under the influence of alco-
hol or drugs, vehicular manslaughter, reckless driv-
CALIFORNIA TOW TRUCK v. CITY OF SAN FRANCISCO 9695
ing bodily injury, any sex offense which would
cause the applicant to be registered as a sex offender,
any unlawful carrying, use or possession of a fire-
arm, any assault or battery (misdemeanor or felony),
kidnapping, arson, extortion, murder, possession of
alcoholic beverage, opened alcohol container, mari-
juana, or narcotic drug while driving, bailee tamper-
ing; or
(4) The applicant has knowingly falsified any state-
ment contained in his application, or has knowingly
omitted information in his application which could
result in a denial of the permit; or
(5) The applicant does not possess or cannot obtain
an FDIC-authorized bank credit card machine.
Id. § 3054. Likewise, the Chief of Police may suspend or
revoke a tow firm permit for those same reasons, or for the
following additional reasons:
(1) Within five years prior to the date of application
the applicant has been convicted of any of the fol-
lowing crimes:
Theft, petty theft, theft of a vehicle, breaking or
removing vehicle parts, malicious mischief to vehi-
cle, check fraud, credit card fraud, driving under the
influence of alcohol or drugs, vehicular manslaugh-
ter, reckless driving bodily injury, any sex offense
which would cause the applicant to be registered as
a sex offender, any unlawful carrying, use or posses-
sion of a firearm, any assault or battery (misdemea-
nor or felony), kidnapping, arson, extortion, murder,
possession of alcoholic beverage, opened alcohol
container, marijuana, or narcotic drug while driving,
or bailee tampering.
9696 CALIFORNIA TOW TRUCK v. CITY OF SAN FRANCISCO
(2) The imposition of towing, storage or other
charges in excess of the maximum rate established
by the City and County of San Francisco for its con-
tracted tow car firms;
(3) Unauthorized charges added to the tow fee,
including use of special equipment, release fees,
administrative fees or other charges added to the tow
fee;
(4) The towing or removal of any vehicle from pub-
lic or private storage in other than a duly authorized
manner;
(5) Failure to maintain in full force and effect the
required bodily injury and property damage insur-
ance;
(6) Employing any person as a tow car operator who
has not been issued a valid tow car operator’s permit
by the San Francisco Police Department;
(7) Knowingly falsifying a tow car firm application
or insurance certificate, or intentionally omitting
from an application facts which could have resulted
in a denial of the permit;
(8) Failure to report towed vehicles as required by
law and Chief of Police rules;
(9) Falsification of any document used in the course
of business as a tow car firm;
(10) Failure to take reasonable steps to prevent viola-
tions of the law by employees in the course and
scope of their employment; [or]
CALIFORNIA TOW TRUCK v. CITY OF SAN FRANCISCO 9697
(11) Failure to permit peace officers the ability to
inspect the tow car firm premises or operations
thereof.
Id. § 3056.
If a vehicle is towed from private property, the tow firm is
required to notify authorities within thirty minutes and pro-
vide identifying information on the vehicle, the location
where the vehicle is being stored, contact information, and the
name of the person authorizing the tow. Id. § 3057. Permit
holders are required periodically to submit proof of insurance
for all businesses vehicles, and to notify the police department
of changes in the number of trucks and associated truck driv-
ers. Id. § 3058. A peace officer may inspect a firm’s tow
trucks for code and safety violations. Id. § 3059. And, as with
the individual tow truck driver permits, a towing firm permit
lasts for a year and is renewable annually upon payment of an
annual fee.6 Id. § 3062.
When a vehicle has been towed, Article 30.1 also requires
tow firms to provide information to towed-vehicle owners by
displaying and making available a brochure “in a conspicuous
place in the location where a vehicle owner must come to
reclaim their towed vehicle.” Id. § 3055.2(c). The brochure,
developed by the police department, contains a summary of
relevant California law, “including the maximum rate that can
be legally charged for a private property tow and the rights
and responsibilities of all parties who participate in towing
from private property: real property owners, vehicle owners,
tow car operators and tow car firms.” Id. § 3055.2(b). In pro-
mulgating the brochure requirement in 2009, the San Fran-
cisco Board of Supervisors made the following findings:
6
As of July 2012, the initial permit fee for a tow car firm was $1,013,
with an annual license fee of $546 for the first tow truck, and $217 for
each additional tow truck. See S.F. Police Code §§ 2.26-.27. The initial
permit fee increased from $575 to $1,013 on July 1, 2010, as did other
fees.
9698 CALIFORNIA TOW TRUCK v. CITY OF SAN FRANCISCO
(i) that there are frequent incidents of illegal towing
from private property in San Francisco; and
(ii) that there is a significant risk to the safety of resi-
dents and visitors when illegal towing from private
property occurs at night; and
(iii) that there is a risk to public health and safety
when the vehicles of senior citizens and persons with
disabilities are illegally towed from private property;
and
(iv) that illegal towing from private property affects
vulnerable populations when people of limited eco-
nomic means are required to pay hundreds of dollars
to recover their vehicle, or are subjected to defi-
ciency claims by collection agencies if they could
not afford to pick up their vehicle even though the
vehicle was illegally towed; and
(v) that the rights of vehicle owners when their vehi-
cle is towed from private property, as described in
the California Vehicle Code, are extremely difficult
for citizens and visitors to find and understand, espe-
cially for non-English speakers or those who speak
English as a foreign language; and
(vi) that there are no accessible resources for people
to research their rights and responsibilities with
respect to private property tows; and
(vii) that requiring tow car firms to provide informa-
tion on the legal rights of vehicle owners at the time
they reclaim their vehicle would be an effective way
of informing vehicle owners of their rights under
California law when their vehicle is towed from pri-
vate property; and
CALIFORNIA TOW TRUCK v. CITY OF SAN FRANCISCO 9699
(viii) that preventing illegal conduct by tow car oper-
ators when towing from private property would
reduce the economic burden on residents and visitors
by eliminating the need to go to small claims court
after a vehicle owner has already paid to reclaim the
vehicle; and
(ix) that consistent adherence to legal towing prac-
tices will substantially increase the quality of life for
residents and the experience of visitors to San Fran-
cisco.
Id. § 3055.2(a).
A violation of either § 3050 or § 3055 is a misdemeanor.
Id. § 3064. And, like Article 30, Article 30.1 contains a sever-
ability clause, indicating that if any part of Article 30.1 is
found to be invalid, such a finding does not affect the validity
of the remaining parts of the Article. Id. § 3065.7
B. The CTTA’s Preemption Challenge
The CTTA is a nonprofit corporation representing over
1,000 towing companies, including companies doing business
in and around San Francisco. It filed this suit against San
Francisco in state court, challenging enforcement of the Per-
7
Section 3065 provides:
If any section, subsection, subdivision, paragraph, sentence,
clause or phrase of this Article, or any part thereof, is for any rea-
son held to be unconstitutional or invalid or ineffective by any
court of competent jurisdiction, such decision shall not affect the
validity or effectiveness of the remaining portions of this Article
or any part thereof. The Board of Supervisors hereby declares
that it would have passed each section, subsection, subdivision,
paragraph, sentence, clause or phrase thereof, irrespective of the
fact that any one or more sections, subsections, subdivisions,
paragraphs, sentences, clauses or phrases be declared unconstitu-
tional or invalid or ineffective.
9700 CALIFORNIA TOW TRUCK v. CITY OF SAN FRANCISCO
mit System. San Francisco removed the action to federal
court, as the suit asserted both federal and state law claims.
The suit seeks injunctive and declaratory relief as to both
Articles 30 and 30.1, asking for (among other relief) “a decla-
ration that San Francisco Police Code sections 3000 et seq.
and 3050 et seq. are invalid because they have been pre-
empted by state and federal law” and “an injunction prohibit-
ing the City from enforcing the . . . ordinances.” Count One
alleges in pertinent part that “[t]he City’s permit scheme
directly impacts the price, route, and service of the motor car-
rier members of CTTA, and is therefore preempted by federal
law pursuant to the supremacy clause of Article VI of the
United States Constitution.”8
CTTA’s primary claim is that the Permit System is pre-
empted by 49 U.S.C. § 14501(c)(1),9 which provides:
Except as provided in paragraphs (2) and (3), a State,
political subdivision of a State, or political authority
of 2 or more States may not enact or enforce a law,
regulation, or other provision having the force and
effect of law related to a price, route, or service of
any motor carrier . . . .
As stated, “paragraphs (2) and (3)” are exceptions from this
preemption. The exceptions relevant to this action are a
8
The Complaint also alleges that “the entire scheme is . . . preempted
by state law,” that impounding tow cars in violation of “the permit
scheme” violates the Fourth Amendment, and that “[t]he City’s permit
scheme” violates the dormant commerce clause.
9
The preemption provision at issue is part of the Interstate Commerce
Act, as amended by the Federal Aviation Administration Authorization
Act of 1994, Pub. L. No. 103-305, § 601, 108 Stat. 1569, 1606, and the
ICC Termination Act of 1995, Pub. L. No. 104-88, § 103, 109 Stat. 803,
899. See City of Columbus v. Ours Garage & Wrecker Serv., 536 U.S.
424, 429 (2002) (naming the statute in full); Indep. Towers of Wash. v.
Washington, 350 F.3d 925, 928 (9th Cir. 2003) (same). The parties and
this court refer to the statute as the “FAAAA.”
CALIFORNIA TOW TRUCK v. CITY OF SAN FRANCISCO 9701
“safety exception,” an “insurance exception,” and a “price
exception.” They provide that § 14501(c)(1):
shall not restrict the safety regulatory authority of a
State with respect to motor vehicles, . . . or the
authority of a State to regulate motor carriers with
regard to minimum amounts of financial responsibil-
ity relating to insurance requirements and self-
insurance authorization; . . . and
. . . does not apply to the authority of a State or a
political subdivision of a State to enact or enforce a
law, regulation, or other provision relating to the
price of for-hire motor vehicle transportation by a
tow truck, if such transportation is performed with-
out the prior consent or authorization of the owner or
operator of the motor vehicle.
49 U.S.C. § 14501(c)(2)(A) & (C).
It bears emphasizing that the CTTA challenges the Permit
System itself — the basic requirement for tow truck drivers
and towing firms to obtain permits, the corresponding condi-
tions and requirements to maintain permits, the penalties for
violating provisions, and the fees charged for the permits.
Although it took issue with many permit conditions, however,
the CTTA does not specifically seek to invalidate particular
aspects of the Permit System. It does not, for example, specif-
ically ask the court to excise the requirement for tow firms to
display brochures explaining towing laws in different lan-
guages (S.F. Police Code § 3055.2), or eliminate check fraud
from the list of disqualifying convictions (S.F. Police Code
§ 3054(3)). Rather, the CTTA seeks, on behalf of its mem-
bers, to operate in San Francisco without municipal towing
permits at all (it recognizes, however, that it would still have
other obligations such as compliance with state and local
licensing laws). Indeed, it admitted forthrightly at oral argu-
ment that its primary concern is financial — the relatively
9702 CALIFORNIA TOW TRUCK v. CITY OF SAN FRANCISCO
high fees its members have to pay for towing permits, and the
costs that it claims duplicate other costs its members pay for
background checks and other requirements to obtain similar
California motor carrier permits or other licenses.
C. The District Court Decision
The district court granted in part and denied in part cross-
motions for summary judgment. See Cal. Tow Truck Ass’n v.
City & Cnty. of S.F., No. C 10-03184 CRB, 2010 WL
5071602 (N.D. Cal. Dec. 7, 2010).10 Consistent with the focus
of the briefing, the district court addressed the Permit System
as a whole. The district court distinguished between three
groups of tow drivers and tow firms:
(1) those “passing through” the City; (2) those
engaged in consensual tows in the City; and (3)
those engaged in non-consensual tows in the City.
Consensual towing involves an agreement between
the car owner and the tow truck driver. Non-
consensual towing involves towing, often from pri-
vate lots, improperly or “illegally” parked cars. In
non-consensual tows the car owner typically does
not know that his car has been towed until he comes
to retrieve it and it is not there.
Id. at *2 (footnote omitted). The district court declared that:
10
Aside from the conclusions regarding preemption discussed in this
Opinion, the district court granted summary judgment to San Francisco on
CTTA’s dormant commerce clause and Fourth Amendment claims. The
district court also declined to exercise supplemental jurisdiction over the
state law claims and remanded those claims to state court. See, e.g., Acri
v. Varian Assocs., 114 F.3d 999, 1001 (9th Cir. 1997) (en banc). These
other rulings were not appealed, and thus we address only Count One —
whether the Permit System is preempted by the FAAAA and thus violates
the Supremacy Clause.
CALIFORNIA TOW TRUCK v. CITY OF SAN FRANCISCO 9703
the City’s Permit System is preempted to the extent
it applies to drivers and/or firms engaged in consen-
sual tows or tows passing though the City. The City
remains free to apply its Permit System to drivers
and firms engaged in non-consensual towing in the
City.
Id. at *7 (footnote omitted). As to tows “passing through the
City,” the district court noted that
tows passing through the City are tows that originate
and conclude outside the City. If a non-consensual
tow originates or concludes in the City, that driver
and any tow firm he is associated with are still sub-
ject to the Permit System.
Id. at *7 n.7. It further noted that
The City can continue to apply the Permit System to
drivers and firms engaged in both consensual and
non-consensual towing. The Permit System is pre-
empted only to the extent it is applied to drivers and
firms engaged exclusively in consensual towing.
Id. at *7 n.8. The court enjoined San Francisco “from apply-
ing the Permit System to drivers and/or firms engaged exclu-
sively in consensual towing or merely passing through the
City,” although it stayed the injunction pending appeal. Id. at
*1. These timely cross-appeals followed.
II. JURISDICTION AND STANDARD OF REVIEW
The CTTA’s preemption challenge presents a federal ques-
tion under 28 U.S.C. § 1331. See, e.g., Shaw v. Delta Air
Lines, Inc., 463 U.S. 85, 96 n.14 (1983) (“A plaintiff who
seeks injunctive relief from state regulation, on the ground
that such regulation is pre-empted by a federal statute . . .
presents a federal question which the federal courts have
9704 CALIFORNIA TOW TRUCK v. CITY OF SAN FRANCISCO
jurisdiction under 28 U.S.C. § 1331 to resolve.”); Cal. Shock
Trauma Air Rescue v. State Comp. Ins. Fund, 636 F.3d 538,
543 (9th Cir. 2011) (recognizing that “the presence of a state
official [as a defendant] is crucial to the reasoning in Shaw”).
The court has appellate jurisdiction under 28 U.S.C. § 1291.
The court reviews a district court’s decision regarding fed-
eral preemption de novo. Tillison v. Gregoire, 424 F.3d 1093,
1098 (9th Cir. 2005). The court also reviews the district
court’s interpretation and construction of the FAAAA de
novo. Id.
III. DISCUSSION
A. FAAAA Preemption and Applicable Exceptions
[1] As set forth above, the FAAAA generally preempts
state and local laws “related to a price, route, or service of any
motor carrier.” 49 U.S.C. § 14501(c)(1). It is undisputed that
tow truck firms are “motor carriers” and that the Permit Sys-
tem, or at least aspects of that system, are “related to a price,
route, or service” of a motor carrier.
[2] The action thus centers around the exceptions to
FAAAA preemption. As set forth above, the “safety excep-
tion” in § 14501(c)(2)(A) permits laws related to “the safety
regulatory authority of a State with respect to motor vehicles.”
The “insurance exception” in § 14501(c)(2)(A) allows state
laws “relating to insurance requirements and self-insurance
authorization.” And the “price exception” in § 14501(c)(2)(C)
saves from preemption state or local laws “relating to the
price of for-hire motor vehicle transportation by a tow truck,
if such transportation is performed without the prior consent
or authorization of the owner or operator of the motor vehi-
cle” (i.e., “non-consensual” towing). Although all three
exceptions are relevant, ultimately the action turns on the
broader safety exception, which we describe next.
CALIFORNIA TOW TRUCK v. CITY OF SAN FRANCISCO 9705
B. The “Safety Exception”
The test for determining whether to apply the safety excep-
tion derives from City of Columbus v. Ours Garage &
Wrecker Service, 536 U.S. 424, 429 (2002). Ours Garage
held that the safety exception can apply to ordinances enacted
by municipalities, even though § 14501(c)(2) refers only to
“the safety regulatory authority of a State.” Id. at 428 (empha-
sis added). Prior to Ours Garage, many courts had indeed
restricted the safety exception to state laws, leaving local laws
preempted even if enacted for safety reasons. See, e.g., Tocher
v. City of Santa Ana, 219 F.3d 1040, 1051 (9th Cir. 2000);
Petrey v. City of Toledo, 246 F.3d 548, 563-64 (6th Cir.
2001).
Ours Garage emphasized that “[p]reemption analysis
‘start[s] with the assumption that the historic police powers of
the States [(e.g., laws protecting public safety)] were not to be
superseded by the Federal Act unless that was the clear and
manifest purpose of Congress.’ ” 536 U.S. at 438 (second
alteration in original) (quoting Medtronic, Inc. v. Lohr, 518
U.S. 470, 485 (1996)). Such police powers have historically
been entrusted by states to local government units, which “are
created as convenient agencies for exercising such of the gov-
ernmental powers of the State as may be entrusted to them in
its absolute discretion.” Id. at 437 (quoting Wisc. Pub. Inter-
venor v. Mortier, 501 U.S. 597, 607-08 (1991)) (internal quo-
tation marks omitted). Ours Garage examined the safety
exception’s purpose, which was “to ensure that [the
FAAAA’s] preemption of States’ economic authority over
motor carriers of property . . . ‘not restrict’ the preexisting and
traditional state police power over safety.” Id. at 439 (quoting
49 U.S.C. § 14501(c)(2)(A)).
[3] At the same time, however, Ours Garage “also warned
that states and municipalities could not hide economic regula-
tion under the guise of safety regulation.” VRC LLC v. City
of Dallas, 460 F.3d 607, 612 (5th Cir. 2006). In that context,
9706 CALIFORNIA TOW TRUCK v. CITY OF SAN FRANCISCO
Ours Garage “reiterate[d] that § 14501(c)(2)(A) shields from
preemption only ‘safety regulatory authority’ . . . . Local regu-
lation of prices, routes, or services of tow trucks that is not
genuinely responsive to safety concerns garners no exemption
from § 14501(c)(1)’s preemption rule.” 536 U.S. at 442
(emphasis added).11 And so, the basic test for whether the
safety exception applies is whether a challenged regulation is
“genuinely responsive to safety concerns.” If so, it is not pre-
empted.
C. “Genuinely Responsive to Safety Concerns” — a
Two-Part Test
Applying that basic test, however, can be challenging —
courts have articulated different formulations of how to deter-
mine if a law is “genuinely responsive to safety concerns.”
All agree that the focus begins with intent, i.e., “whether the
purpose and intent of the body passing the law at issue,
whether state or municipality, was truly safety.” Tillison v.
City of San Diego, 406 F.3d 1126, 1129 (9th Cir. 2005); see
also Gregoire, 424 F.3d at 1101. “In making that determina-
tion, we must consider any specific expressions of legislative
11
Ours Garage recognized that, if construed too broadly, the exception
could swallow the rule. In that regard, it points out that 49 U.S.C. § 31141
“affords the Secretary of Transportation a means to prevent the safety
exception from overwhelming the lawmakers’ deregulatory purpose.” 536
U.S. at 441. It explained:
That provision authorizes the Secretary to void any “State law or
regulation on commercial motor vehicle safety” that, in the Sec-
retary’s judgment, “has no safety benefit . . . [or] would cause an
unreasonable burden on interstate commerce.” §§ 31141(a),
(c)(4); see also § 31132(8) (“ ‘State law’ includes [for the pur-
poses of § 31141] a law enacted by a political subdivision of a
State”); § 31132(9) (parallel definition of “State regulation”).
Under this authority, the Secretary can invalidate local safety reg-
ulations upon finding that their content or multiplicity threatens
to clog the avenues of commerce.
Id. at 441-42 (alterations in original).
CALIFORNIA TOW TRUCK v. CITY OF SAN FRANCISCO 9707
intent in the statute itself as well as the legislative history, and
we must assess any purported safety justifications asserted by
the state or municipality in light of the existing record evi-
dence.” Loyal Tire & Auto Ctr., Inc. v. Town of Woodbury,
445 F.3d 136, 145 (2d Cir. 2006); see also Auto. Club of N.Y.,
Inc. v. Dykstra, 520 F.3d 210, 215 (2d Cir. 2008) (per
curiam).
Although not in a towing context, the Ninth Circuit summa-
rized the analysis as follows:
We must ask if the regulator “was acting out of
safety concerns.” That is, we must consider whether
the purpose and intent was “truly safety.” But that
does not mean that we are required to take the regu-
lator at its word; we need to go further with the anal-
ysis. We must still decide whether the regulation is
genuinely responsive to safety concerns.
Am. Trucking Associations v. City of L.A., 559 F.3d 1046,
1053-54 (9th Cir. 2009) (“ATA I”) (citations omitted).12
12
ATA I was the first of three Ninth Circuit opinions in long-running
(and ongoing) litigation against the Ports of Los Angeles and Long Beach
challenging comprehensive “concession agreements” concerning drayage
and trucking operations at those ports. We refer to American Trucking
Associations v. City of Los Angeles, 559 F.3d 1046 (9th Cir. 2009), as
“ATA I”; American Trucking Associations v. City of Los Angeles, 596 F.3d
602 (9th Cir. 2010), as “ATA II”; and American Trucking Associations v.
City of Los Angeles, 660 F.3d 384 (9th Cir. 2011), petition for cert. filed,
80 U.S.L.W. 3404 (U.S. Dec. 22, 2011) (No. 11-798), as “ATA III.” At
this time, the Supreme Court has requested the position of the Solicitor
General on the petition for certiorari in ATA III, and the petition is still
pending.
The CTTA appears to advocate treating ATA I’s formulation as creating
a new two-part test (which it believes is necessary after Rowe v. New
Hampshire Motor Transport Association, 552 U.S. 364 (2008)). It reads
ATA I as meaning that a court asks first whether the regulation is intended
to address safety concerns, and then assesses whether it is genuinely
9708 CALIFORNIA TOW TRUCK v. CITY OF SAN FRANCISCO
Most recently, ATA III refined the inquiry by analyzing
“mixed motives” — a situation where regulators were moti-
vated by environmental concerns and safety concerns. ATA III
held that “[t]he presence of such mixed motives . . . does not
preclude the application of the safety exception, provided that
the State’s safety motives are not pre-textual.” 660 F.3d at
405. Indeed, asking whether a proffered safety motive is “not
pre-textual” is equivalent to asking whether a law is “genu-
inely responsive” to safety concerns. Further, after identifying
the safety motive, ATA III upheld the challenged provision
because it had a “logical connection” to motor vehicle safety.
Id.
Allowing for “mixed motives” makes sense, for in reality
lawmakers may have multiple reasons for enacting laws. For
example, in VRC LLC, the Fifth Circuit upheld an aspect of
a towing ordinance (requiring signage warning drivers of a
threat of towing) against a preemption challenge based upon
the safety exception. 460 F.3d at 615-16. In so doing, VRC
LLC recognized that “municipalities are accomplishing some
economic regulation, or more precisely consumer protection,
while making findings about safety.” Id. at 615. Having such
multiple reasons is not fatal because “safety and consumer
protection are not mutually exclusive categories.” Id. Rather,
responsive to safety concerns. Such a formulation, however, is circular.
These statements in ATA I are merely a different way of articulating the
same test.
In this regard, the CTTA also argues that Rowe requires the safety
exception to be read narrowly. But Rowe did not concern the safety excep-
tion, and certainly did not overrule Ours Garage, which explained that the
safety exception is not to be construed narrowly. See 536 U.S. at 440 (“A
congressional decision to enact both a general policy that furthers a partic-
ular goal and a specific exception that might tend against that goal does
not invariably call for the narrowest possible construction of the excep-
tion. Such a construction is surely resistible here, for § 14501(c)(1)’s pre-
emption rule and § 14501(c)(2)(A)’s safety exception to it do not
necessarily conflict.”).
CALIFORNIA TOW TRUCK v. CITY OF SAN FRANCISCO 9709
it sufficed that “the City’s safety concerns [were] real enough
that the [Fifth Circuit was] convinced that they are both rea-
sonably related and genuinely responsive to safety concerns.”
Id.
To synthesize, courts apply a two-part inquiry to determine
whether a law is “genuinely responsive to safety concerns.”
First, courts consider available legislative or regulatory intent
— ask whether safety relating to motor vehicles was truly a
concern. Second, courts assess the nexus between the provi-
sion at issue and the safety concern — ask whether the regula-
tion sufficiently “responds to” the concern. The first step
examines any “expressions of legislative intent,” including (1)
the particular language of the statute or regulation being chal-
lenged, and any explicit statutory or regulatory findings in the
provision; and (2) available legislative or regulatory history
(e.g., committee reports, or statements of lawmakers). Once a
safety motivation is identified, the second step looks to “the
existing record evidence” to determine whether there is a
“logical” or “genuine” connection between the regulation and
the safety justification, or, instead, whether the purported
safety justification is a pretext for undue economic regulation.
The more attenuated or speculative the connection, the more
likely it will be that a court will find the purported safety
motives “illusory or pretextual” and that the safety justifica-
tion will not withstand scrutiny. See id.
D. Method of Analysis — Provision-by-Provision
[4] Of particular importance here — as explained in ATA
I — a court must analyze a challenge to a comprehensive law
on a provision-by-provision basis. That is, where a multi-
faceted law or regulation is challenged as a whole, it is still
necessary to analyze each of its essential or major component
parts. Upholding a multi-part regulatory scheme necessarily
upholds its components, and “the mere fact that one part of a
regulation or group of regulations might come within an
exception to preemption does not mean that all other parts of
9710 CALIFORNIA TOW TRUCK v. CITY OF SAN FRANCISCO
that regulation or group are also excepted.” ATA I, 559 F.3d
at 1055. “Were it otherwise, a single valid excepted provision
would allow a vast amount of nonexcepted provisions to
stand.” Id. Similarly, the mere fact that one part of the regula-
tory scheme is preempted does not mean that other parts of
the scheme are preempted, or that the scheme as a whole is
preempted.
In the original district court decision in the ATA litigation,
for example, the district court (relying on the safety excep-
tion) rejected an FAAAA preemption challenge to mandatory
comprehensive “concession agreements” for drayage trucking
services at the Ports of Los Angeles and Long Beach. Id. at
1049. The suit sought to enjoin the concession agreements as
a whole, whereas the agreements consisted of comprehensive
and varied licensing provisions regulating all manner of dray-
age services such as air quality, performance, security, safety,
trucking identification, parking, maintenance, and insurance
— all with a “principal motivating factor” of environmental
and public health concerns. Id. at 1049 & n.5. Although some
provisions might have had safety-related motivations, ATA I
ultimately remanded because the district court did not address
specific provisions of the concession agreements. Id. at 1054.
Rather, “when preemption is claimed, a court must pay care-
ful attention to the particular provisions that a state or local
entity seeks to impose upon motor carriers.” Id. “[T]he district
court legally erred in not examining the specific provisions of
the Concession agreements.” Id. at 1057.
E. The District Court’s Application of the Safety
Exception to the Permit System
1. Application of the Two-Part Test
Here, the district court carefully applied the basic test
described above, i.e., it analyzed whether the Permit System
was “genuinely responsive to safety concerns” by first exam-
ining expressions of legislative intent, and then determining
CALIFORNIA TOW TRUCK v. CITY OF SAN FRANCISCO 9711
whether the Permit System was responsive to those articulated
safety concerns.
The district court looked to findings the Board of Supervi-
sors made in 2009 when it amended Article 30.1 to add the
brochure requirement in S.F. Police Code § 3055.2. Among
the findings were that “there is a significant risk to the safety
of residents and visitors when illegal towing from private
property occurs at night” and “there is a risk to public health
and safety when the vehicles of senior citizens and persons
with disabilities are illegally towed from private property.”
S.F. Police Code § 3055.2(a)(ii) & (iii). These findings are
explicitly safety related, although the extent to which they
should be relied upon to evidence legislative intent with
respect to parts of the permitting scheme adopted earlier is an
open question.
Other findings in § 3055.2 have more implicit safety moti-
vations. The district court cited the following: “there are no
accessible resources for people to research their rights and
responsibilities with respect to private property tows” and “re-
quiring tow car firms to provide information on the legal
rights of vehicle owners at the time they reclaim their vehicle
would be an effective way of informing vehicle owners of
their rights under California law when their vehicle is towed
from private property.” Id. § 3055.2(a)(vi) & (vii).
The district court concluded that these findings together
indicate that the San Francisco Board of Supervisors was con-
cerned, at least in significant part, with public safety in “ille-
gal towing” in particular (and more generally with non-
consensual towing) when it amended the Permit System to
add the brochure requirement.
The district court also found “expressions of legislative
intent” in the Permit System’s implementing legislation —
the California statute that authorized San Francisco to create
and implement the Permit System in the first place. In this
9712 CALIFORNIA TOW TRUCK v. CITY OF SAN FRANCISCO
regard, California authorizes its local governments to regulate
tow truck firms and operators by creating licensing schemes
(consistent with the Supreme Court’s observation in Ours
Garage that states historically entrust local government units
to exercise traditional police powers, see 536 U.S. at 437). See
Cal. Veh. Code § 21100(g).13
At the second step, the district court examined whether the
Permit System “responds to” the identified motor vehicle
safety goals “in light of the record evidence” and other fac-
tors. It did so by assessing a five-page declaration of Sergeant
William Coggan, the Commanding Officer of the Permit Sec-
tion of the San Francisco Police Department, who reviews
tow truck permit applications, conducts hearings on the appli-
cations, and investigates the conduct of tow companies and
drivers under the Permit System. The court reviewed Sgt.
Coggan’s testimony, which indicated that aspects of the Per-
mit System were, at least in part, responsive to articulated
safety concerns.
Applying the two-part analysis, the district court concluded
that the safety exception applies to non-consensual towing
13
California Vehicle Code § 21100 provides that:
Local authorities may adopt rules and regulations by ordinance
or resolution regarding the following matters:
....
(g)(1) Licensing and regulating the operation of tow truck ser-
vice or tow truck drivers whose principal place of business or
employment is within the jurisdiction of the local authority . . . .
(2) The Legislature finds that the safety and welfare of the gen-
eral public is promoted by permitting local authorities to regulate
tow truck service companies and operators by requiring licensure,
insurance, and proper training in the safe operation of towing
equipment, thereby ensuring against towing mistakes that may
lead to violent confrontation, stranding motorists in dangerous
situations, impeding the expedited vehicle recovery, and wasting
state and local law enforcement’s limited resources.
CALIFORNIA TOW TRUCK v. CITY OF SAN FRANCISCO 9713
and upheld the Permit System in that regard (i.e., those doing
any non-consensual towing need a permit). Specifically, it
concluded that the available legislative findings and history
set forth safety concerns as to non-consensual towing, and the
Permit System was sufficiently responsive to those concerns.
On the other hand, the district court concluded that the safety
exception does not apply to consensual towing because there
are no “expressions of legislative intent” indicating that law-
makers were concerned about safety as to that type of towing.
With nothing from which to garner a safety intent, the district
court determined that as to consensual towing San Francisco
failed at the first step of the analysis.14
2. The District Court’s Failure to Comply With ATA I
[5] But, as careful as the district court was to remain stead-
fast to the two-part test, it nevertheless failed to analyze the
Permit System’s essential individual provisions as required by
ATA I. That is, it “legally erred in not examining the specific
provisions” of the Permit System. ATA I, 559 F.3d at 1057;
see also ATA II, 596 F.3d at 605-06 (agreeing with the district
court’s decision that specifically analyzed each of disputed
provisions and considering whether the Port of Los Angeles
was acting out of safety concerns when it enacted each
requirement of the concession agreements). If the district
court had examined each provision individually, it might have
concluded that particular provisions could not survive an
application of the two-part test; they may not be “genuinely
14
The district court also briefly invoked the insurance and price excep-
tions. Cal. Tow Truck Ass’n, 2010 WL 5071602, at *3. Its Order states that
“[k]eeping tabs on drivers and firms engaged in non-consensual towing
via a permit system makes it easier for the City to ensure that insurance
requirements are being met and reasonable fees are being charged.” Id.
But it did not attempt to justify the entire Permit System (even as applied
only to non-consensual towing) based only on those exceptions. Rather,
the district court reasoned that the Permit System’s “provisions relating
directly or indirectly to fees and insurance dovetail with the broader
safety-related purposes of the Permit System.” Id.
9714 CALIFORNIA TOW TRUCK v. CITY OF SAN FRANCISCO
responsive to safety concerns” (or they may not even be pre-
empted at all). And it is a separate question whether the entire
Permit System can be justified if some of its provisions are
rendered invalid. “Were it otherwise, a single valid excepted
provision [could] allow a vast amount of nonexcepted provi-
sions to stand.” ATA I, 559 F.3d at 1055.
In this regard, the Permit System’s severance provisions
allow a court, upon individual examination, to sever a particu-
lar provision if it would not affect the Permit System as a
whole. On the other hand, if major provisions are preempted,
“it may not be practicable to leave the remaining portions
standing.” Id. at 1060 (citing United States v. Manning, 527
F.3d 828, 840 (9th Cir. 2008)). Manning indicates that, even
given a savings clause, a statute can be preempted where its
“most significant” parts are excised. Manning, 527 F.3d at
840. To answer that question, ATA I “[left] it to the district
court on remand to determine whether [an] injunction should
run against all or only a portion of [the] Concession agree-
ment.” ATA I, 559 F.3d at 1060. We do the same here.
We recognize that the district court may have been led
astray by the manner in which the case was presented to it.
The CTTA did not ask the district court to invalidate specific
provisions of the Permit System. Indeed, although it did so on
appeal, the CTTA did not cite ATA I and its requirement to
analyze individual provisions to the district court. But, in
examining whether the Permit System is preempted, we can
raise these questions even if the district court was not specifi-
cally asked to do so. See N.Y. Susquehanna & W. Ry. Corp.
v. Jackson, 500 F.3d 238, 256-57 (3d Cir. 2007)
(“Susquehanna object[s] to this sort of remand by arguing that
the State did not ask the District Court to examine the regula-
tions individually. That is irrelevant. . . . Nothing prevents us,
in our de novo review of the District Court’s application of
law to facts . . . from recognizing that the law in this area [of
preemption] admits of more nuance than any of the parties . . .
argued and fashioning our remand accordingly.”).
CALIFORNIA TOW TRUCK v. CITY OF SAN FRANCISCO 9715
[6] We are not suggesting that the district court must ana-
lyze every sentence of the Permit System, line by line. Rather,
because the CTTA challenges the Permit System as a whole,
the district court is required to analyze the major provisions
identified by the CTTA and address whether the Permit Sys-
tem can survive, after severing provisions, if any, that are pre-
empted (or not saved from preemption by a statutory
exception). It may be that the Permit System’s essential
requirement to obtain permits can be justified based on San
Francisco’s “safety regulatory authority.” But here the Permit
System as a whole — with its components, conditions, and
burdens — was upheld in part and invalidated in part without
analyzing those key provisions. Under ATA I, in deciding
whether the Permit System itself is preempted, the district
court must address the Permit System’s components. Indeed,
it should start with whether a particular provision is even sub-
ject to preemption in the first place. Cf. ATA III, 660 F.3d at
403-04 (holding that the “financial capability” provision was
not preempted in the first place because it did not relate to
rates, routes, or services, so there was no need to consider the
safety exception). In short, ATA I requires us to remand the
action for the district court to analyze the Permit System’s
provisions in the first instance.
F. Applicable Preemption Principles
The following principles are applicable to the district
court’s preemption analysis on remand.
1. Inferring Legislative Intent
In addressing “consensual towing,” the district court found
the safety exception inapplicable at the first step of the two-
part test, ostensibly at least in part because San Francisco
could point to no “expressions of legislative intent” indicating
a safety motivation as to consensual towing. The district court
recognized that the Permit System contains some general
safety provisions regarding, for example, inspections and tow-
9716 CALIFORNIA TOW TRUCK v. CITY OF SAN FRANCISCO
ing equipment. But it stated that, as a whole, there “are no
legislative findings that general towing safety motivated the
Board of Supervisors to create the Permit System.” Cal. Tow
Truck Ass’n, 2010 WL 5071602, at *5. It apparently felt con-
strained by its reading of the two-part test, as it reasoned:
The Court’s conclusion on this issue [of consensual
towing] stems from its understanding of the analysis
it is required to undertake to determine whether a
regulation is genuinely responsive to safety con-
cerns. . . . [T]he test, as the Court understands it,
requires the Court to review legislative expressions
of intent and then determine whether the regulation
fairly serves to address the identified safety con-
cerns.
To reiterate, the legislative findings reveal a concern
about safety in the context of non-consensual tows,
and the Permit System helps the City address those
concerns. But the Court cannot go so far as to say
that the purpose and intent of the Board of Supervi-
sors in applying the Permit System to firms and driv-
ers engaged only in consensual towing was “truly
related to safety” or that in applying the Permit Sys-
tem to such firm and drivers the Board of Supervi-
sors “was acting out of safety concerns.”
Id. (citation omitted).
In this regard, the first step addresses whatever traditional
sources of legislative intent are available.15 But this step also
15
Evidence of legislative intent generally arises from the contemporane-
ous record, although a court may consider testimony from members of the
legislative body in question regarding that record. See, e.g., ATA III, 660
F.3d at 407 n.16 (“In assessing the Port’s motivations, we focus exclu-
sively on the orders and published documents issued by the Port, and on
statements made at trial by high-ranking Port officials.”); Galactic Tow-
CALIFORNIA TOW TRUCK v. CITY OF SAN FRANCISCO 9717
allows for the situation where history is lacking — especially
at a local level where committee reports or municipal state-
ments might not be published. That is, merely because a
safety rationale is not documented does not necessarily mean
the safety exception cannot apply. Sometimes a safety justifi-
cation is so obvious that it need not be stated — intent can be
obvious from the subject of the regulation itself, as well as
from the surrounding circumstances. See Gregoire, 424 F.3d
at 1102-03 (holding that a Washington towing regulation was
covered by the safety exception where, although the “legisla-
ture did not expressly state a public safety purpose for enact-
ing [the] legislation,” it was “reasonable to conclude” from
the statutory language, which was “practically identical in
wording to other patrol and non-consensual towing regula-
tions held to be safety-related,” that the legislature “had pub-
lic safety in mind when it passed” the regulation). It would
elevate form over substance to invalidate permit requirements
merely because local lawmakers did not articulate the obvi-
ous. Courts often have to infer legislative intent in similar sit-
uations. See Harrison v. PPG Indus., 446 U.S. 578, 592
(1980) (“[I]t would be a strange canon of statutory construc-
tion that would require Congress to state in committee reports
or elsewhere in its deliberations that which is obvious on the
face of a statute.”); Pub. Citizen v. Farm Credit Admin., 938
F.2d 290, 292 (D.C. Cir. 1991) (per curiam) (“[S]ilence in
legislative history is almost invariably ambiguous. If a statute
is plain in its words, the silence may simply mean that no one
in Congress saw any reason to restate the obvious.”) (quoting
ing, Inc. v. City of Miami Beach, 341 F.3d 1249, 1253 (11th Cir. 2003)
(per curiam) (providing that where the text of a city ordinance “expressly
articulates a public safety purpose,” a court may also consider affidavits
of City officials containing “relevant information on how the challenged
sections of the City’s vehicle towing ordinance affect safety concerns.”
(emphasis omitted)). A court should be wary, however, about crediting
post hoc safety rationalizations that conflict with the contemporaneous
legislative record. See VRC LLC, 460 F.3d at 614; Loyal Tire & Auto Ctr.,
Inc. v. Town of Woodbury, 445 F.3d 136, 146 (2d Cir. 2006).
9718 CALIFORNIA TOW TRUCK v. CITY OF SAN FRANCISCO
Avco Corp. v. U.S. Dep’t of Justice, 884 F.2d 621, 625 (D.C.
Cir. 1989)) (internal quotation marks omitted).
To be clear, we are not implying that any particular provi-
sion of the Permit System should or should not be preempted.
On remand, the slate is clean for the district court to analyze
the Permit System and its individual provisions in light of the
factors set forth in this Opinion (including intervening
caselaw such as ATA III and its discussion of “mixed
motives”).
2. Preemption “As-Applied”
In analyzing whether the Permit System is preempted by
the FAAAA, the district court at the outset distinguished
between different types of towing — non-consensual, consen-
sual, and “passing through” — and analyzed the safety excep-
tion in that light. It did so, however, without addressing an
open issue — whether a federal law can ever preempt state
law on an “as applied” basis, that is, whether it is proper to
find that federal law preempts a state regulatory scheme
sometimes but not at other times, or that a federal law can
preempt state law when applied to certain parties, but not to
others. Nor have the parties briefed this issue. Rather, CTTA
has repeatedly asserted that it is making a facial challenge to
the permit scheme. On remand, the district court should con-
sider whether it can resolve the preemption questions without
analyzing them on an “as applied” basis, and if not, whether
further briefing is necessary.
G. The Permit System’s Potential Effect on Tow Trucks
Simply “Passing Through” San Francisco
Lastly, San Francisco asserts on cross-appeal that the dis-
trict court lacked jurisdiction to enjoin it from enforcing the
Permit System against tow trucks merely passing through San
Francisco, i.e., where a driver neither picks up nor drops off
a tow in the City. This argument has merit. Such a claim is
CALIFORNIA TOW TRUCK v. CITY OF SAN FRANCISCO 9719
not ripe, and thus the CTTA lacks standing. See Thomas v.
Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1139 (9th
Cir. 2000) (en banc) (“Whether the question is viewed as one
of standing or ripeness, the Constitution mandates that prior
to our exercise of jurisdiction there exist a constitutional ‘case
or controversy,’ that the issues presented are ‘definite and
concrete, not hypothetical or abstract.’ ” (quoting Ry. Mail
Ass’n v. Corsi, 326 U.S. 88, 93 (1945)).
The undisputed evidence establishes that San Francisco
does not require tow truck drivers and tow firms to obtain a
permit just to pass through San Francisco. According to Sgt.
Coggan, “[t]he City only requires tow companies and tow
truck drivers to obtain permits if they routinely conduct busi-
ness in the City.” He further declares:
Nor does the City have a policy of citing tow compa-
nies or tow truck drivers for “passing through” San
Francisco without a permit. As far as I am aware, the
City has never cited a tow company or tow truck
driver for “passing through” San Francisco without
a permit.
And in its briefing before the district court, San Francisco
confirmed that “the [San Francisco] Police Department does
not enforce, and never has enforced the permit requirement in
this fashion.”
It follows that the district court lacked jurisdiction (as do
we) over a challenge by passers-through. “In assuring that
[the] jurisdictional prerequisite is satisfied, we consider
whether the plaintiffs face ‘a realistic danger of sustaining a
direct injury as a result of the statute’s operation or enforce-
ment,’ or whether the alleged injury is too ‘imaginary’ or
‘speculative’ to support jurisdiction.” Thomas, 220 F.3d at
1139 (citation omitted) (quoting Babbitt v. United Farm
Workers Nat’l Union, 442 U.S. 289, 298 (1979)). CTTA has
not shown a realistic danger of enforcement here, and accord-
9720 CALIFORNIA TOW TRUCK v. CITY OF SAN FRANCISCO
ingly it lacks standing to bring this challenge because there is
no injury in fact.
The CTTA offers evidence that some of its members who
lack San Francisco towing permits avoid driving through San
Francisco with tows because of its Permit System. But such
claimed injury (fear of enforcement) is “imaginary” and
“speculative” where the prosecuting authorities have not
“communicated a specific warning or threat to initiate pro-
ceedings,” and where there is no “history of past prosecution
or enforcement under the challenged statute.” Thomas, 220
F.3d at 1139. “When plaintiffs do not claim that they have
ever been threatened with prosecution, that a prosecution is
likely, or even that a prosecution is remotely possible, they do
not allege a dispute susceptible to resolution by a federal
court.” Id. at 1140 (quoting Babbitt, 442 U.S. at 298-99)
(internal quotation marks omitted). Moreover, “[t]he mere
existence of a statute, which may or may not ever be applied
to plaintiffs, is not sufficient to create a case or controversy
within the meaning of Article III.” San Diego Cnty. Gun
Rights Comm. v. Reno, 98 F.3d 1121, 1126 (9th Cir. 1996)
(alteration in original) (quoting Stoianoff v. Montana, 695
F.2d 1214, 1223 (9th Cir. 1983)) (internal quotation marks
omitted).
[7] In short, the court lacks jurisdiction to address whether
the Permit System can be enjoined against those simply pass-
ing through San Francisco because CTTA has not demon-
strated the requisite standing to bring such a challenge. On
remand, unless new evidence is presented to the district court
showing that San Francisco is now enforcing, or threatens to
enforce, the Permit System as to tow truck drivers merely
passing through, the district court need not specifically
address this aspect of the Permit System.
IV. CONCLUSION
ATA I requires a provision-by-provision preemption analy-
sis of San Francisco’s Permit System regulating tow truck
CALIFORNIA TOW TRUCK v. CITY OF SAN FRANCISCO 9721
drivers and towing firms to determine whether the entire sys-
tem is preempted by federal law. Accordingly, we vacate and
remand for further proceedings. The parties are to bear their
own costs on appeal.
VACATED AND REMANDED.