Wayne Wright v. Charles Beck ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WAYNE WILLIAM WRIGHT, No. 19-55084
Plaintiff-Appellant,
D.C. No.
v. 2:15-cv-05805-
R-PJW
CHARLES L. BECK; MICHAEL NELSON
FEUER; HEATHER AUBRY; RICHARD
TOMPKINS; JAMES EDWARDS; CITY OPINION
OF LOS ANGELES,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted April 1, 2020
Pasadena, California
Filed December 1, 2020
Before: Richard A. Paez, Consuelo M. Callahan, and
Lawrence VanDyke, Circuit Judges.
Opinion by Judge Paez
2 WRIGHT V. BECK
SUMMARY *
Civil Rights
The panel affirmed in part and reversed in part the
district court’s summary judgment in an action brought
pursuant to 42 U.S.C. § 1983 alleging, in part, that law
enforcement officials violated plaintiff’s Fourteenth
Amendment due process rights when they seized and
destroyed a portion of his firearms collection.
Officers of the Los Angeles Police Department
(“LAPD”) executed a search warrant and seized plaintiff’s
collection of over 400 firearms. Plaintiff spent the next
decade trying to recover the collection, asserting he owned
the firearms lawfully. The LAPD voluntarily returned
approximately eighty firearms, but kept the rest because, in
its determination, plaintiff had not submitted sufficient proof
that he owned them. While the parties were still negotiating,
LAPD officer Edwards applied to the Los Angeles County
Superior Court for an order granting permission to destroy
the firearms, without giving plaintiff notice that he intended
to seek such an order. Having obtained the order, the LAPD
destroyed the firearms by smelting them.
The panel held that plaintiff did not argue he was entitled
to notice beyond what due process mandated, as defendants
asserted. Had plaintiff abandoned the firearms and the
requisite time had lapsed under California Penal Code
section 34000(a), perhaps the LAPD could have applied ex
parte for a destruction order without giving notice of its
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
WRIGHT V. BECK 3
intended action. But given that plaintiff continued to assert
a claim of right to the firearms and reasonably believed that
the LAPD was still reviewing the documentation he
provided, he was entitled to know that the LAPD intended to
seek an order permitting destruction of the remaining
firearms.
The panel held that a reasonable factfinder could
conclude that officer Edwards violated plaintiff’s due
process rights. The panel had no doubt that officer Edwards
had fair notice that his conduct violated plaintiff’s due
process right to notice, and therefore he was not entitled to
qualified immunity. The panel rejected defendants’
arguments that the district court’s judgment should be
affirmed on alternative grounds, including assertions that
defendants were entitled to derivative quasi-judicial
immunity, that plaintiff released his property interest in the
collection, and that a state order precluded the determination
that plaintiff was entitled to notice. The panel affirmed,
however, the district court’s conclusion that LAPD officers
Aubry and Tompkins were entitled to summary judgment
because there was no evidence linking them to the alleged
due process violation.
Because the panel reversed the district court’s grant of
summary judgment on plaintiff’s Fourteenth Amendment
due process claim, the panel also reversed the district court’s
grant of summary judgment on plaintiff’s failure-to-train
claim brought under Monell v. Dep’t of Soc. Servs. of City of
N.Y., 436 U.S. 658 (1978), which the district court
characterized as derivative of plaintiff’s due process and
Fourth Amendment claims.
In a separate memorandum disposition, the panel
affirmed the district court’s grant of summary judgment on
4 WRIGHT V. BECK
a defense of qualified immunity on plaintiff’s Fourth
Amendment claim.
COUNSEL
Anna M. Barvir (argued), C. D. Michel, Joshua R. Dale, and
Scott M. Franklin, Michel & Associates P.C., Long Beach,
California, for Plaintiff-Appellant.
Matthew A. Scherb (argued), Deputy City Attorney; Blithe
S. Bock, Managing Assistant City Attorney; Scott Marcus,
Chief, Civil Litigation Branch; Kathleen A. Kenealy, Chief
Assistant City Attorney; Michael N. Feuer, City Attorney;
Office of the City Attorney, Los Angeles, California; for
Defendants-Appellees.
OPINION
PAEZ, Circuit Judge:
Wayne Wright spent decades amassing a collection of
over 400 firearms, which, according to him, was worth over
half a million dollars. In 2004, officers of the Los Angeles
Police Department (LAPD) executed a search warrant and
seized the collection. Wright spent the next decade trying to
recover it, asserting he owned the firearms lawfully. The
LAPD voluntarily returned approximately eighty firearms,
but kept the rest because, in its determination, Wright had
not submitted sufficient proof that he owned them.
While the parties were still negotiating, an LAPD officer
applied to the Los Angeles County Superior Court for an
order granting permission to destroy the firearms. The
WRIGHT V. BECK 5
officer did not give Wright notice that he intended to seek
such an order. Thus, Wright did not have an opportunity to
contest the officer’s application, and the court granted it.
Having obtained the order, the LAPD destroyed the firearms
by smelting them. Wright sued various parties under
42 U.S.C. § 1983, asserting, among other claims, a violation
of his Fourteenth Amendment right to due process. The
district court granted summary judgment in favor of the
defendants sued in their individual capacities. Because
Wright could not prevail against the individual defendants,
the court also concluded that Wright could not maintain his
Monell failure-to-train claim 1 against the municipal
defendants and granted summary judgement in favor of
those defendants as well.
We consider whether, on the facts alleged by Wright, his
due process rights were violated and, if so, whether the law
was clearly established at the time of the violation. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm in part,
reverse in part, and remand. 2
I.
The saga begins after an LAPD sting operation in 2004. 3
The LAPD obtained a search warrant from the Los Angeles
County Superior Court (the “Los Angeles Court”) and seized
1
Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658 (1978).
2
In a separate memorandum disposition, we affirm the district
court’s grant of summary judgment on a defense of qualified immunity
on Wright’s Fourth Amendment claim.
3
We review the facts, as we must, in the light most favorable to
Wright. See Mendiola-Martinez v. Arpaio, 836 F.3d 1239, 1247 (9th Cir.
2016).
6 WRIGHT V. BECK
more than 400 firearms from Wright’s residence and storage
unit in Ventura County. In August 2006, Wright pled guilty
to one count of possession of an unregistered assault
weapon. The plea agreement, reduced to a court order
imposing probation conditions, stated that Wright could not
possess any firearms for thirty-six months. Under the terms
of the agreement, the firearms would be destroyed or sold
unless Wright could provide proof of ownership to the
LAPD as required by its policy regarding the return of seized
guns. LAPD policy provided:
The Department must accept any reasonable
proof of ownership. Registration in the name
of the lawful owner shall constitute proof of
ownership. However, a lack of registration
does not constitute a lack of proof of
ownership unless registration is required by
law for possession and/or ownership of the
gun. Unless there is articulable probable
cause to disbelieve a sworn declaration from
the claimant/owner, a sales receipt, or other
proof of ownership from the claimant shall
constitute proof of ownership.
Manual of the LAPD, Vol. IV, at § 560.40 4. In other words,
under departmental policy, Wright could prove he owned the
firearms by either showing they were registered in his name
or through a sworn declaration, sales receipt, or other proof
of ownership, unless the LAPD had probable cause to
disbelieve such evidence.
4
Available at https://www.lapdonline.org/lapd_manual/volume_4.
htm#540.
WRIGHT V. BECK 7
A few months after pleading guilty, Wright moved the
Ventura County Superior Court (the “Ventura Court”) for
return of his seized property. The LAPD agreed to release
twenty-eight firearms registered to Wright but opposed
release of the remaining firearms. The court ordered release
of the non-firearm property in a written order. The order,
however, did not identify the twenty-eight firearms the
LAPD conceded belonged to Wright, nor did it address the
remaining firearms of which Wright sought release.
According to Wright, the court delayed ruling on those
matters to another day and, for unspecified reasons, removed
the rescheduled hearing from its calendar. 5 The record,
however, does not indicate a further hearing was ever set.
After completing his term of probation, Wright and his
then-counsel Joseph Silvoso (“Silvoso”) spent the next
seven years negotiating off and on with LAPD Detectives
Richard Tompkins (“Tompkins”) and James Edwards
(“Edwards”) and Deputy City Attorney Heather Aubry
(“Aubry”) about the kinds of records that Wright would need
to furnish to obtain his firearms. In May 2010, Silvoso
provided the LAPD with receipts for ninety-four firearms
and explained the difficulty in obtaining records for the
others because Wright had spent decades acquiring them. A
few months later, the LAPD explained that it was “slowly”
reviewing the records Wright provided but, for unexplained
reasons, stated it required original receipts rather than the
copies Wright provided. Silvoso explained he could not
hand over the original receipts but invited Edwards and
5
Wright represents that the court continued the hearing to decide the
remaining claims and later removed the hearing from calendar but does
not cite a written ruling or minute order to that effect. The LAPD
reiterated the same procedural history in its opposition to Wright’s 2011
motion for a return of his property.
8 WRIGHT V. BECK
Aubry to inspect them in his office. In November 2010,
Silvoso followed up with Edwards and Aubry asking if they
needed anything beyond the original receipts and a sworn
declaration to prove ownership of the firearms. Edwards and
Aubry did not respond.
About a year later, in August 2011, Wright filed another
motion in the Ventura Court for return of his firearms. In its
opposition, the LAPD reiterated that it did not oppose
releasing twenty-six firearms, all of which reflected a
“Dealer Record of Sale” to Wright, but opposed releasing
the remaining firearms. 6 The LAPD also moved the Ventura
Court for an order to destroy the remaining firearms. In
reply, Wright filed a declaration asserting he owned all the
seized firearms (save for forty) and attached the ninety-four
receipts he previously had provided to the LAPD.
The court held a hearing the following month, in
September 2011. At the hearing, the LAPD admitted it had
delayed reviewing Wright’s records and had not yet
reviewed the receipts or Wright’s sworn declaration. The
department explained it needed additional time to review the
records to determine whether Wright had provided
reasonable proof of ownership. As a result of the LAPD’s
representation, the court, in a written order dated October 17,
2011, ordered the LAPD to release the twenty-six firearms it
had agreed belonged to Wright. 7 The court did not rule on
the remaining disputed firearms. Instead, the court
instructed the parties to meet and confer to determine
6
It is unclear why the LAPD’s initial decision to release twenty-
eight firearms in 2007 dropped to twenty-six in 2011.
7
The summary judgment record does not contain a copy of the court
reporter’s transcript of this hearing.
WRIGHT V. BECK 9
whether the ownership status of the remaining firearms
could be resolved informally and, if not, to return to court. 8
Immediately after the hearing, Wright and Silvoso spoke
with Aubry and Tompkins in the courthouse hallway.
During that conversation, Aubry and Tompkins stated they
would contact them if the LAPD believed they needed
additional proof of ownership. In November 2011, Wright
provided the original versions of the ninety-four receipts to
the LAPD. Later that month, Tompkins emailed Silvoso
stating that the LAPD was “still working [their] way through
the receipts.” A few months later, in March 2012, Tompkins
reassured Silvoso that the LAPD was “making progress”
with Wright’s case and would contact Silvoso within a few
weeks. The parties continued to negotiate over email.
In April 2012, Edwards and Tompkins determined
Wright had proved that he owned eighty of the ninety-four
firearms for which he provided receipts, which included the
original twenty-six that the LAPD already had released, as
provided by the Ventura Court’s order. The order permitting
release of the twenty-six firearms did not reference or grant
a request to destroy the remaining 300-plus firearms 9 in the
LAPD’s custody. Nor did the officers tell Wright that they
8
Defendants contend that the court’s October 2011 order constituted
a “deni[al]” of Wright’s request for return of all his firearms and stress
that Wright never “[sought] review” of this order. But, contrary to
Defendants’ argument, the Ventura Court did not decide the fate of the
remaining guns, and, as this court later recognized, left “the final
resolution” of those guns “for another day.” Wright v. Beck, 723 Fed.
App’x 391, 392 (9th Cir. Dec. 20, 2017).
9
This number is estimated by subtracting from the original
463 seized firearms the eighty firearms the LAPD conceded belonged to
Wright and the forty firearms over which Wright did not declare
ownership.
10 WRIGHT V. BECK
had completed their review process or had probable cause to
disbelieve his sworn declaration as to the remaining
firearms. In fact, no one informed Wright or Silvoso the
review process had been completed, or that it was
determined Wright did not prove he owned the remaining
firearms. Wright assumed that Tompkins and Edwards were
reviewing his records to determine whether he needed to
provide additional proof. He assumed so because of their
consistent representations that they were still reviewing the
records. He also understood the court’s statements at the
September 2011 hearing required the parties to return to
court once informal negotiations had failed.
Instead, in December 2013, Edwards applied ex parte to
the Los Angeles Court—to the same judge who had
approved the 2004 search warrant—for an order permitting
destruction of the remaining firearms. In the request for
destruction, Edwards represented to the court:
The evidence was seized in 2004. Items that
have been identified as belonging to the
[defendant] though [sic] receipts, DROS and
Etrace have been returned. No evidence of
ownership by the [defendant] has been
received in regard to the last remaining items
of evidence. The time to appeal has long
since passed.
Wright presents no evidence suggesting that Aubry knew
about or instructed Edwards to seek the court order without
providing Wright or his counsel notice. Similarly, Wright
presents no evidence that Tompkins facilitated Edwards’s
efforts in seeking the court order. Nonetheless, it is
undisputed that neither Edwards, Tompkins, nor Aubry gave
notice to Wright or his counsel. Ultimately, the court
WRIGHT V. BECK 11
granted the application and issued the order. Accordingly,
in June 2014, the LAPD destroyed the remaining 300-plus
firearms, over which Wright continued to assert ownership.
In August 2014, Wright’s counsel learned that the LAPD had
destroyed the firearms.
The following year, Wright sued Aubry, Edwards, and
Tompkins, Los Angeles Police Department Chief Charles L.
Beck (“Beck”), Los Angeles City Attorney Michael N. Feuer
(“Feuer”), and the City of Los Angeles (the “City”)
(collectively, “Defendants”) in federal court. Wright’s First
Amended Complaint, the operative complaint, alleged,
among other claims: (1) violations of his Fourth and
Fourteenth Amendment rights under 42 U.S.C. § 1983against all defendants and sought damages against only
Aubry, Edwards, and Tompkins; and (2) a Monell claim
against Beck, Feuer, and the City for failure to train. Wright
sued Aubry, Edwards, and Tompkins in their individual
capacities and Beck and Feuer solely in their official
capacities. Defendants moved to dismiss, arguing that the
Ventura Court impliedly ruled in its September 2011 order
that Wright had no possessory interest in the firearms. The
district court granted the motion, and Wright appealed. We
reversed, holding in a memorandum disposition that the
court “grossly mischaracterized” the Ventura Court order to
suggest that Wright had no possessory interest in the
firearms. Wright, 723 Fed. App’x at 392. We reasoned that
the Ventura Court left “the final resolution” of those guns
“for another day.” Id.On remand, and after discovery had closed, Defendants
moved for summary judgment on the merits of Wright’s
Fourth and Fourteenth Amendment claims. Defendants
Aubry, Tompkins, and Edwards also raised a qualified
immunity defense. The district court granted the motion,
12 WRIGHT V. BECK
concluding the individual named Defendants, even those
sued in their official capacity, were entitled to qualified
immunity. 10 The court reasoned that Tompkins and
Edwards were entitled to qualified immunity because they
acted in accordance with California law, LAPD policy, and
court orders. The court also reasoned that Beck, Aubry, and
Feuer were entitled to qualified immunity because there was
no evidence they promulgated or enforced any illegal
policies.
Further, the district court held that Wright’s due process
rights were not violated because he was not entitled to notice
that the LAPD sought a disposition order from the Los
Angeles Court to destroy the firearms. The district court also
held no Fourth Amendment violation occurred because the
officers acted reasonably in refusing to return the seized
firearms that had not been released by court order. Last,
because the district court granted summary judgment in
favor of Defendants on Wright’s Fourth and Fourteenth
Amendment claims, it concluded that Wright’s Monell claim
also failed as a matter of law.
Wright timely appealed.
II.
We review de novo grants of summary judgment.
Mendiola-Martinez, 836 F.3d at 1247. In so doing, we “must
determine whether, viewing the facts in the light most
favorable to . . . the non-moving party, any genuine issues of
10
The court did not specify for which alleged constitutional
violation they were entitled to qualified immunity.
WRIGHT V. BECK 13
material fact exist, and whether the district court correctly
applied the substantive law.” Id.
Qualified immunity shields government officials from
civil liability if “their actions could reasonably have been
thought consistent with the rights they are alleged to have
violated.” Anderson v. Creighton, 483 U.S. 635, 638 (1987).
The protection “attaches when an official’s conduct does not
violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” Kisela v.
Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam) (quoting
White v. Pauly, 137 S. Ct. 548, 551 (2017) (per curiam)).
The reasonableness of the officer’s conduct is “judged
against the backdrop of the law at the time of the conduct.”
Id. (quotation marks and citation omitted).
“In determining whether an officer is entitled to qualified
immunity, we employ a two-step test . . . .” Mattos v.
Agarano, 661 F.3d 433, 440 (9th Cir. 2011) (en banc). First,
“we decide whether the officer violated a plaintiff’s
constitutional right . . . .” Id. “[I]f the answer to that inquiry
is ‘yes,’ we proceed to determine whether the constitutional
right was ‘clearly established in light of the specific context
of the case’ at the time of the events in question. Id. (quoting
Robinson v. York, 566 F.3d 817, 821 (9th Cir. 2009)). In the
second step, “we ask whether [the constitutional right’s]
contours were sufficiently clear that every reasonable
official would have understood that what he is doing violates
that right.” Id. at 442 (quotation marks omitted). “While we
do not require a case directly on point, . . . existing precedent
must have placed the statutory or constitutional question
beyond debate.” Id. (quotation marks, citation, and
alteration omitted). “The Supreme Court has made ‘clear
that officials can still be on notice that their conduct violates
established law even in novel factual circumstances.’” Id.
14 WRIGHT V. BECK
(quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)); see also
A.D. v. Cal. Highway Patrol, 712 F.3d 446, 455 (9th Cir.
2013).
A.
The Fourteenth Amendment guarantees that a state
cannot “deprive any person of . . . property[] without due
process of law.” U.S. Const., Amend. XIV. 11 Despite the
somewhat Delphic formulation, one of due process’s central
and undisputed guarantees is that, before the government
permanently deprives a person of a property interest, that
person will receive—at a minimum—notice. Mullane v.
Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950);
see also Tulsa Pro. Collection Servs. v. Pope, 485 U.S. 478(1988); Dusenbery v. United States, 534 U.S. 161, 167
(2002); United States v. James Daniel Good Real Prop.,
510 U.S. 43, 48 (1993).
Notice is so critical because it enables the opportunity to
be heard. Mullane, 339 U.S. at 314; Memphis Light, Gas &
Water Div. v. Craft, 436 U.S. 1, 14 (1978) (“The purpose of
notice under the Due Process Clause is to apprise the
affected individual of, and permit adequate preparation for,
an impending ‘hearing.’”). A meaningful opportunity to be
heard, in turn, provides its own benefits. It helps “minimize
substantively unfair or mistaken deprivations.” Fuentes v.
Shevin, 407 U.S. 67, 81 (1972). It also preserves the “high
value, embedded in our constitutional and political history,
that we place on a person’s right to enjoy what is his, free of
governmental interference.” Id. And it preserves a person’s
dignity to “choose for himself whether to appear or default,
11
Defendants do not dispute that Wright’s firearms fall under the
category of “property” governed by due process.
WRIGHT V. BECK 15
acquiesce or contest.” Mullane, 339 U.S. at 314. Without
notice, “[the] right to be heard has little reality or worth.”
Id. 12
Thus, notice must be “reasonably calculated, under all
the circumstances, to apprise interested parties of the
pendency of the action and afford them an opportunity to
present their objections.” Mullane, 339 U.S. at 314; City of
W. Covina v. Perkins, 525 U.S. 234, 240 (1999) (holding the
form of notice must be sufficient to ensure the opportunity
to be heard is “meaningful.”).
In the time since Mullane was issued, the Supreme Court
has “adhered unwaveringly” to its pronouncements,
frequently holding that inadequate attempts to provide notice
violate due process. Mennonite Bd. of Missions v. Adams,
462 U.S. 791, 797 (1983) (citing cases). For instance, in
Walker v. City of Hutchinson, 352 U.S. 112, 116 (1956), the
Court held notice of a condemnation proceeding in a local
newspaper was insufficient to provide a landowner with
notice. The Court reasoned, given the fundamental
importance of notice, and the risk that newspaper publication
alone would fail to ensure it, due process was violated. Id.Similarly, in Greene v. Lindsey, 456 U.S. 444, 453 (1982),
the Court held that posting notice on the door of a tenant’s
apartment of a forcible entry or detainer action “does not
satisfy minimum standards of due process.” Due process
demanded more, the Court explained, given that additional
12
Although Wright also argues that a due process violation also
occurred under the balancing test under Mathews v. Eldridge, 424 U.S.
319, 335 (1976), the Mullane test “supplies the appropriate analytical
framework,” as the pending issue involves “the adequacy of the method
used to give notice,” Dusenberry, 534 U.S. at 167–68.
16 WRIGHT V. BECK
efforts, such as notice by mail or additional home visits, were
feasible. Id. at 454–55.
By logical extension, outright failures to even attempt to
provide notice violate due process. For example, in Sniadick
v. Family Finance Corp., the Supreme Court struck down a
state statute that allowed a worker’s wages to be frozen,
without notice or an opportunity to be heard, in between
garnishment and resolution of a lawsuit. 395 U.S. 337, 338–
42 (1969). The Court concluded: “Where the taking of one’s
property is so obvious, it needs no extended argument that
absent notice and a prior hearing this prejudgment
garnishment procedure violates the fundamental principles
of due process.” Id. at 342 (citation omitted); see also
Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84 (1988)
(“Failure to give notice violates ‘the most rudimentary
demands of due process of law.’”) (quoting Armstrong v.
Manzo, 380 U.S. 545, 550 (1965)); Perkins, 525 U.S. at 240–
41.
Due process is not satisfied simply because judges have
facilitated the deprivation. For instance, in Fuentes, the
Court struck down state statutes authorizing the summary
seizure of goods under an ex parte writ of replevin, without
notice or an opportunity to be heard. 407 U.S. at 96–97. The
Court explained: “If the right to notice and a hearing is to
serve its full purpose, then, it is clear that it must be granted
at a time when the deprivation can still be prevented.” Id.
at 81. The Court reached this conclusion even though the
putative owner of the goods eventually received notice and
could contest the deprivation through post-deprivation
procedures. Id. And it made no difference a judge oversaw
the process and granted the writ of replevin. See id.Similarly, in Peralta, the Supreme Court reversed a
default judgment that was “entered without notice or
WRIGHT V. BECK 17
service” as “constitutionally infirm.” 485 U.S. at 84. The
Court held that reversal was required, even without a
showing of prejudice, and rejected the lower court’s
threshold inquiry into the defenses the party would have
brought or the litigation strategy they would have adopted.
Id. at 86–87 (“[I]t is no answer to say . . . due process of law
would have led to the same result because [a defendant] had
no adequate defense upon the merits.”) (quoting Coe v.
Armour Fertilizer Works, 237 U.S. 413, 424 (1915)). That
is because notice—regardless of what it might have
accomplished in a particular case—is such a core aspect of
due process that its absence will lead us to question the
fairness of the deprivation.
Further, even in cases after the government has lawfully
seized property, reasonable notice must be provided prior to
a final deprivation. See Perkins, 525 U.S. at 240–41
(“[W]hen law enforcement agents seize property pursuant to
warrant, due process requires them to take reasonable steps
to give notice that the property has been taken so the owner
can pursue available remedies for its return.”). That is why,
in Matthias v. Bingley, the Fifth Circuit held that a municipal
ordinance that authorized, without notice to the property
owners, the disposal of property seized pursuant to a
criminal investigation violated due process. 906 F.2d 1047,
1053 (5th Cir. 1990). The court reasoned that the ordinance
created a “high risk of erroneous deprivations.” Id. at 1052.
Similarly, in Gates v. City of Chicago, the Seventh
Circuit reversed a summary judgment ruling in favor of a
municipality on a § 1983 action because a triable issue of
fact existed about whether the notice form provided to
arrestees satisfied due process. 623 F.3d 389, 401 (7th Cir.
2010). The court concluded that the procedures to retrieve
property were “arcane and not generally available,” and thus
18 WRIGHT V. BECK
individual notice was required under Memphis Light. Id.
at 400.
Unsurprisingly, for decades, California courts have also
heeded the straightforward rule of requiring notice, both as
due process principle and as a procedural rule. Menefee &
Son v. Dep’t of Food & Agric., 245 Cal. Rptr. 166, 170 (Ct.
App. 1988) (“[A]t a minimum, due process requires notice
and an opportunity for a hearing.”); Conservatorship of
Moore, 229 Cal. Rptr. 875, 879 (Ct. App. 1986) (“An
elementary and fundamental requirement of due process in
any proceeding which is to be accorded finality is notice
reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action
. . . .”) (quoting Mullane, 339 U.S. at 314); People v.
Wilshire Ins. Co., 119 Cal. Rptr. 917, 920 (Ct. App. 1975)
(“[I]n an adversary proceeding where an order may affect the
rights of an adverse party, notice must be given to protect the
adverse party’s right to be heard on the issue as a matter of
due process of law.”); McDonald v. Severy, 59 P.2d 98, 99
(Cal. 1936) (“The general rule is that notice of motion must
be given whenever the order sought may affect the rights of
an adverse party.”); In re Sara D., 104 Cal. Rptr. 2d 909, 916
(2001) (“[A]bsent extraordinary circumstances, even ex
parte applications require notice to all parties of the
application the day before the ex parte hearing.”) (citing Cal.
Rules of Court 379).
Thus, like federal courts, when a party fails to give
adequate notice to an adverse party of a court proceeding,
California courts have not hesitated, in various contexts, to
declare a due process violation and nullify the underlying
order or judgment. See, e.g., Jones v. Otero, 203 Cal. Rptr.
90, 92 (Ct. App. 1984) (reversing sanctions order because
“no notice whatsoever was given” in violation of
WRIGHT V. BECK 19
“fundamental principles of due process”); O’Brien v. Cseh,
196 Cal. Rptr. 409, 412 (Ct. App. 1983) (“Plaintiff’s rush to
compel sanctions against defendant on an ex parte basis
[without notice] was a flagrant violation of due process
principles.”). Statutory schemes that authorize the
destruction of property without notice similarly have been
held to be unconstitutional. See Menefee & Son, 245 Cal.
Rptr. at 171.
In contrast, when “timely and adequate notice” of a
hearing implicating a person’s rights was given, courts have
declined to find a due process violation. See, e.g.,
Needelman v. DeWolf Realty Co., 191 Cal. Rptr. 3d 673, 685
(Ct. App. 2015), as modified on denial of reh’g (Aug. 18,
2015) (holding ex parte motion in eviction proceeding did
not deprive individual of due process because he received
adequate notice of the application prior to the hearing)
(quoting Goldberg v. Kelly, 397 U.S. 254, 267 (1970)).
To be sure, due process tolerates some variance on when
to provide notice, “appropriate to the nature of the case.”
Mullane, 339 U.S. at 313. For instance, in “rare and
extraordinary situations,” the government may deprive an
individual of property without notice or an opportunity to be
heard, so long as the person is later notified of the
deprivation and the procedures to contest it. Bd. of Regents
v. Roth, 408 U.S. 564, 570 n.7 (1972). One such example
occurred in North American Cold Storage Co. v. Chicago,
211 U.S. 306, 315 (1908), wherein the Supreme Court
upheld a municipal ordinance that authorized the summary
seizure and destruction of food deemed unfit for human
consumption. The Court explained that the need for
immediate action outweighed the risk of erroneous
deprivation, and, if such error occurred, the owner could
20 WRIGHT V. BECK
recover damages after the incident in an action at law. Id.at 315–16. 13
Further, the Supreme Court has limited the amount of
effort a party must exert to provide actual notice to a party
whose rights are implicated. See Dusenbery, 534 U.S.
at 168–72. In Dusenbery, for example, the Court considered
whether the government’s attempt at serving notice to an
individual of its intention to forfeit property seized at the
time of his arrest satisfied due process’s notice requirements.
The government sent letters by certified mail to the
correctional institution in which he had been incarcerated,
the residence where he had been arrested, and to his mother’s
home; and it published legal notice of the forfeiture for three
consecutive weeks in a local newspaper. Id. at 164. The
individual sued, claiming he was entitled to “actual notice”
under Mullane. Id. at 169–73. The Court disagreed, holding
that due process does not require “actual notice,” but rather
only reasonable efforts to achieve it, and held the
government’s efforts were reasonable. Id. at 169–71.
Additionally, the Supreme Court has limited the content
a notice form must contain to satisfy due process. For
instance, in Perkins, the Court held that the government need
not “give detailed and specific instructions or advice to
owners” on how they can retrieve property that was lawfully
seized when those procedures are already publicly available.
525 U.S. at 236, 241. Instead, the government need only
take “reasonable steps” to inform the owner that property has
been seized. Id. at 240. When the remedial procedures are
not publicly available, however, reasonable steps must still
13
Defendants do not suggest such extraordinary circumstances
justified the need to destroy the firearms here.
WRIGHT V. BECK 21
be taken to provide notice of them. See Memphis Light,
436 U.S. at 13–15.
Despite these minor limitations on the notice
requirement, no court has held—at least under the
circumstances presented here—that notice can be altogether
abandoned. To the contrary, under almost every conceivable
scenario, there is “no doubt” that the government must take
reasonable steps to provide notice. See Mullane, 339 U.S.
at 313. Given the wealth of precedent—and the safeguards
notice provides—the right to notice has been rightfully
regarded as “elementary,” “fundamental,” Mullane,
339 U.S. at 314, and “rudimentary,” Kelly, 397 U.S. at 267.
The right cannot reasonably be disputed.
Defendants nonetheless argue that the notice
requirement was satisfied at the time the firearms were
seized, and Wright was not entitled to any further notice
thereafter. To address the merits of Defendants’ argument,
we divide up the chronology and nature of the deprivations.
Wright was deprived of his property twice. The first
occurred when LAPD officers seized his firearms during the
execution of a search warrant. That was a temporary
deprivation that is not at issue.
The second deprivation occurred when the LAPD
destroyed Wright’s property amid ongoing negotiations
between Wright and the LAPD. Key to this claim is that,
without notice to Wright, Edwards sought an order from the
Los Angeles Court granting permission to destroy Wright’s
firearms. Wright alleges that Edwards sought this order
while the parties were still informally resolving the
ownership dispute, as encouraged by the Ventura Court. The
subsequent destruction of Wright’s firearms constituted a
permanent deprivation and underscores the need for notice.
22 WRIGHT V. BECK
We have no problem concluding that a rational trier of
fact could find a due process violation under these
circumstances. The wealth of precedent suggests that by
failing to provide Wright with notice and the opportunity to
be heard before the court issued the destruction order,
Edwards denied Wright the most basic and fundamental
guarantees of due process. Mullane, 339 U.S. at 314;
Peralta, 485 U.S. at 86–87; Fuentes, 407 U.S. at 81; Perkins,
525 U.S. at 240–41. 14 First, Supreme Court precedent
makes clear that ex parte hearings that affect a party’s
interest in property, without notice, violate due process and
any order resulting from such a hearing is void. Fuentes,
407 U.S. at 81. Second, Supreme Court precedent makes
clear that the purpose of notice is to “apprise the affected
individual of, and permit adequate preparation for, an
impending ‘hearing.’” Memphis Light, 436 U.S. at 14.
When an individual, however, is incapable of “ascertaining”
the time and place of an impending hearing, see Perkins, 525
U.S. at 241, or cannot “reasonably be expected to educate
himself about” such a hearing, see id. at 242, individualized
notice must be provided. Yet here no notice was provided.
Defendants do not dispute the elementary, fundamental,
and rudimentary guarantee of the right to notice. Instead,
they make three points to argue Wright was not entitled to
notice. First, Defendants contend that Perkins stands for the
proposition that Wright deserved no further notice after the
guns were seized, but this reliance is misplaced. As
explained above, Perkins simply reaffirmed the
14
California’s Rules of Court also mandate that a party seeking an
ex parte order “must notify all parties” before the appearance, “absent a
showing of exceptional circumstances.” Cal. Rules of Court,
Rule 3.1203(a), https://www.courts.ca.gov/cms/rules/index.cfm?title=th
ree&linkid=rule3_1203.
WRIGHT V. BECK 23
longstanding view that statutes alone can provide sufficient
notice of how an owner can retrieve his or her property once
it has been seized by the state. 525 U.S. at 241. 15
Perkins does not apply here, where no notice was
provided—statutory or otherwise—that the police intended
to seek a destruction order while Wright’s claim of
ownership was still pending. If anything, Wright could not
have relied on any publicly available information to
reasonably ascertain that Edwards would seek an ex parte
application at the time that he did. See Memphis Light,
436 U.S. at 13–15. He thus was entitled to know about that
“impending hearing.” See id.; see also Gates, 623 F.3d
at 400.
Second, Defendants argue that Wright did have statutory
notice because two California statutes required destruction
of the firearms. Defendants cite California Penal Code
section 34000(a). That provision states that a firearm “shall
be . . . destroyed” when “the firearm is an exhibit filed in any
criminal action or proceeding which is no longer needed or
is unclaimed or abandoned property, which has been in the
possession of the officer for at least 180 days . . . .” Id.Although the firearms were in LAPD custody for well over
15
Specifically, in that case, police officers seized personal property
pursuant to a search warrant. Perkins, 525 U.S. at 236. The officers left
a form notifying the owners of, among other things, the search, a list of
the items seized, and the names of the officers they could contact for
additional information. Id. at 236–37. Instead of filing a motion for
return of their property, the property owners sued the officers under
§ 1983, arguing they were entitled to notice of the state-law remedies to
recover their property. Id. at 237–38. The Court disagreed, holding that
California law placed the property owners on notice of what remedies
were available to them, and the police thus had no obligation to inform
individuals of publicly available statutory remedies. Id. at 239–41.
24 WRIGHT V. BECK
180 days, Defendants fail to show the second condition was
undisputed—that the firearms were no longer needed as
exhibits in criminal action, unclaimed, or abandoned. 16 To
the contrary, Wright had a pending claim of ownership over
the firearms and could reasonably have believed that the
LAPD was still reviewing his claim. Defendants also rely
on California Penal Code section 18275, but that provision
fails to provide Wright with constructive notice. Section
18275 applies to circumstances in which a firearm is seized
at the scene of a domestic violence dispute, not pursuant to
a warrant, as here. See Cal. Penal Code § 18250 et seq. 17
16
Defendants’ claim that the statute applies “even when the firearms
were not filed as exhibits” is unpersuasive. The case they cite, People v.
Lamonte, 61 Cal. Rptr. 2d 810, 812 (Ct. App. 1997), stands for no such
thing. There, the government argued that a property claimant was not
entitled to the return of property because the statute limited return only
to “exhibits,” and, because the claimant pled guilty, the evidence had
never been filed as exhibits. Id. The court held: “[W]e see no reason to
distinguish between seized property used as exhibits and seized property
which was not used. . . . [The claimant] should have no less due process
regarding return of property by virtue of pleading guilty rather than
proceeding to trial.” Id. That is not a distinction Wright relies on here.
Similarly, little evidence suggests, and a rational trier of fact could
certainly conclude otherwise, that Wright “abandoned” the guns, given
Wright’s counsel’s ongoing communications with Defendants and the
Ventura Court’s September 2011 directive to the parties that they should
resolve their disputes informally.
17
Moreover, § 18275 authorizes the destruction of any firearm held
longer than one year, but specifically exempts firearms that have not
been recovered because of an “extended hearing process” under
California Penal Code section 18420. Section 18420, in turn, allows a
person to petition for a second hearing regarding the return of a
confiscated firearm if the first hearing is unsuccessful. Defendants fail
to show that Wright would not have been entitled to this exemption.
WRIGHT V. BECK 25
Last, Defendants assert they did not need to provide
Wright notice because he already had his opportunity to
pursue available remedies and present his claim of
ownership. This argument misses the mark. Wright’s claim
of ownership was never resolved fully by the Ventura Court.
At the September 2011 hearing, the officers stated they
needed additional time to review Wright’s proof of
ownership. Based on this representation, the court deferred
ruling on Wright’s claims and gave the officers additional
time to review Wright’s ownership records. The court
instructed the parties to attempt to resolve Wright’s
ownership claim informally, and, if those efforts failed, the
parties could return to court. Instead of adhering to these
instructions, however, Defendants turned to a different
venue altogether—the Los Angeles Court—and sought the
ex parte destruction order. By doing so, Defendants pursued
a “procedure that deprive[d] [Wright] of [his] claim[] in a
random manner.” Logan v. Zimmerman Brush Co., 455 U.S.
422, 434 (1982). 18
As the Supreme Court has emphasized time and again,
however, an individual is entitled to notice before “any
proceeding which is to be accorded finality.” Mullane,
339 U.S. at 314; see also Peralta, 485 U.S. at 86–87;
18
In Logan, the Supreme Court held that a state could not skirt its
obligation to provide a hearing to a terminated employee on his request
for reinstatement by scheduling the hearing outside of the 120-day period
mandated by state law. 455 U.S. at 433–35. Logan thus stands for the
straightforward proposition that a state cannot bypass its due process
obligations by creating circumstances that render the process
meaningless. That is akin to what Defendants did here: they partially
litigated Wright’s ownership claims in one adjudicatory proceeding—at
the Ventura Court—while depriving him of his due process rights in
another—at the Los Angeles Court—all the while pointing to state law
to argue that destruction of the firearms was their only choice.
26 WRIGHT V. BECK
Fuentes, 407 U.S. at 81; Perkins, 525 U.S. at 240–41. 19 This
case confirms why the right to notice and an opportunity to
be heard are so fundamental—because “fairness can rarely
be obtained by secret, one-sided determination of facts
decisive of rights.” Fuentes, 407 U.S. at 81 (quoting Joint
Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123,
170–72 (1951) (Frankfurter, J., concurring)). 20 Edwards’s
ex parte application for permission to destroy Wright’s
firearms contained statements that a rational trier of fact
could find were misrepresentations. For example, Edwards
represented to the Los Angeles Court that Wright had
provided “[n]o evidence of ownership” and that “[t]he time
to appeal has long since passed.” But a factfinder could have
determined that Wright did provide evidence of ownership
(i.e., his sworn declaration of ownership), yet Edwards
omitted this fact from his application seeking permission to
destroy Wright’s firearms. Second, a factfinder could have
found that the Ventura Court never entered a final appealable
order denying Wright’s motion for return of his firearms
because the October 17, 2011 order only addressed the
firearms that the LAPD argued could be released to Wright.
That order did not address the disputed firearms. Instead, as
Wright explained, the court instructed the parties at the
September 2011 court hearing to attempt to resolve their
dispute informally and return to court, if necessary.
In sum, Wright does not argue he was entitled to notice
beyond what due process mandates, as Defendants assert.
19
The Supreme Court has also recognized that a claimant’s failure
to comply with a reasonable procedural requirement protects a state from
a due process claim. See Logan, 455 U.S. at 434 n.7. Such a failure
cannot be indisputably assigned to Wright.
20
To be sure, as explained above, a demonstration of prejudice is
not necessary. See Peralta, 485 U.S. at 86–87.
WRIGHT V. BECK 27
Had Wright abandoned the firearms and the requisite time
had lapsed under California Penal Code section 34000(a),
perhaps the LAPD could have applied ex parte for a
destruction order without giving notice of its intended
action. See Logan, 455 U.S. at 434 n.7. But given that
Wright continued to assert a claim of right to the firearms
and reasonably believed that the LAPD was still reviewing
the documentation he provided, he was entitled to know that
the LAPD intended to seek an order permitting destruction
of the remaining firearms.
B.
Because a reasonable jury could find that Wright was
entitled to notice, we must also determine who deprived him
of this right. The record clearly shows that Edwards filed
the application for an order to destroy the firearms and failed
to provide Wright with notice. Thus, taking the facts in the
light most favorable to Wright, a reasonable factfinder could
conclude that Edwards violated Wright’s due process rights.
On the other hand, Wright fails to demonstrate what
specific acts Aubry or Tompkins undertook to facilitate
Edwards’s decision to apply ex parte for a destruction order.
Wright points to evidence demonstrating that Aubry and
Tompkins opposed releasing the firearms to Wright. He
does not, however, cite anything in the record to show that
either Aubry or Tompkins instructed Edwards to proceed
with the application ex parte or otherwise facilitated the
filing of the application. See Jeffers v. Gomez, 267 F.3d 895,
915 (9th Cir. 2001). Because there is no evidence linking
Aubry or Tompkins to the alleged due process violation—
failing to provide notice—we affirm the district court’s
conclusion that Aubry and Tompkins were entitled to
summary judgment.
28 WRIGHT V. BECK
In sum, taking the evidence in the light most favorable to
Wright, a reasonable jury could find that Edwards violated
Wright’s due process right to notice when he applied for a
destruction order without giving Wright notice.
C.
Next, we must determine whether the right to notice of
the ex parte application was “clearly established.” Mattos,
661 F.3d at 442. A constitutional right is clearly established
if the official had “fair notice that her conduct was unlawful”
but still engaged in it. Brosseau v. Haugen, 543 U.S. 194,
198 (2004) (per curiam). Usually, we look to binding
precedent to determine whether an officer had “fair notice”
his or her conduct violated a constitutional right. Mattos,
661 F.3d at 442. And, in reviewing our caselaw, we must be
careful not to—and have indeed been criticized for—
defining clearly-established law “at a high level of
generality.” Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011).
As the Supreme Court explained, broad pronouncements of
an abstract right usually fail to provide a clear sense of the
outer limits of lawful conduct. Saucier v. Katz, 533 U.S.
194, 202 (2001). For example, it may be well-established
that everyone enjoys “the right to due process,” but, as the
Court has explained, this constitutional truism falls short in
elucidating the “objective legal reasonableness” of an
official’s action in any given scenario. Anderson, 483 U.S.
at 639 (quotation marks omitted). Similarly, though in a
different context, it is well-known that the Fourth
Amendment protects against “unreasonable search[es] or
seizure[s],” but that “general proposition . . . is of little help
in determining whether the violative nature of particular
conduct is clearly established.” al-Kidd, 563 U.S. at 742.
Thus, we usually undertake our inquiry “in light of the
specific context of the case, not as a broad general
WRIGHT V. BECK 29
proposition,” and determine whether the right, as explicated,
carries over to the facts before us. Brosseau, 543 U.S. at 198(quoting Saucier, 533 U.S. at 201).
At the same time, an official may have “fair notice” that
conduct is unlawful, “even without a body of relevant case
law,” if the violation is so “obvious” that no reasonable
official would have engaged in such behavior. Id. at 199;
see also United States v. Lanier, 520 U.S. 259, 271 (1997)
(“[I]n [some] instances a general constitutional rule already
identified in the decisional law may apply with obvious
clarity to the specific conduct in question, even though the
very action in question has not previously been held
unlawful. . . .”) (quotation marks, citation, and alteration
omitted); see also Browder v. City of Albuquerque, 787 F.3d
1076, 1082–83 (10th Cir. 2015) (Gorsuch, J.) (“[S]ome
things are so obviously unlawful that they don’t require
detailed explanation and sometimes the most obviously
unlawful things happen so rarely that a case on point is itself
an unusual thing.”).
We have thus not hesitated to deny qualify immunity to
officials in certain circumstances, “even without a case
directly on point.” See, e.g., A.D., 712 F.3d at 455; Charter
of Hells Angels Motorcycle Club v. City of San Jose,
402 F.3d 962, 975 (9th Cir. 2005) (denying qualified
immunity to officers who unreasonably destroyed property
while executing a search warrant); Mena v. City of Simi
Valley, 226 F.3d 1031, 1041 (9th Cir. 2000) (denying
qualified immunity to officers who “needlessly ransack[ed]
[a] home and destroy[ed] property”); Hernandez v. City of
San Jose, 897 F.3d 1125, 1138 (9th Cir. 2018) (denying
qualified immunity to officers who directed attendees of a
political rally toward a violent crowd of protesters).
30 WRIGHT V. BECK
The need for an on-point case is further diluted when the
“clearly established” rule is concrete and specific. For
example, in Mena, at the time of the allegedly unlawful
conduct, it was “clearly established” that officers violate the
Fourth Amendment during the execution of a search warrant
when they engage in “unnecessarily destructive behavior.”
226 F.3d at 1041 (quoting Liston v. City of Riverside,
120 F.3d 965, 979 (9th Cir. 1997)). Thus, we concluded that
an officer who destroyed an already-ajar door to a home
during the execution of a search warrant was not entitled to
qualified immunity, even though we did not cite a specific
on-point case. Id. That is because what conduct constituted
needless destruction was, in that instance, self-evident. See
id.Similarly, in Hernandez, we recognized that our
precedent had long established that a person’s substantive
due process rights were violated when a state actor acted
with deliberate indifference to a known or obvious danger
but nonetheless exposed an individual to it. 897 F.3d
at 1135–37. Although the type of danger to which an officer
can expose someone can take innumerable forms, we had no
trouble concluding that the nature of the right provided
“obvious clarity,” in the circumstances there, that
shepherding attendees at a political protest through a
“violent crowd of protesters and actively prevent[ing] them
from reaching safety” violated due process. Id. at 1138.
Turning to the case at hand, we have no doubt that
Edwards had fair notice that his conduct violated Wright’s
due process right to notice. Although “due process” has
been castigated as “cryptic” and “abstract,” see Mullane,
339 U.S. at 313, its balustrades have been identified, time
and again, as notice and an opportunity to be heard, id.
at 314; Peralta, 485 U.S. at 86–87; Fuentes, 407 U.S. at 81;
WRIGHT V. BECK 31
Perkins, 525 U.S. at 240–41. As explained above, California
courts have for decades observed this straightforward rule,
which adds to our confidence that the law was clearly
established. See Drummond ex rel. Drummond v. City of
Anaheim, 343 F.3d 1052, 1060 (9th Cir. 2003) (“In the
absence of binding precedent, a court should look to
whatever decisional law is available to ascertain whether the
law is clearly established for qualified immunity purposes,
including decisions of state courts, other circuits, and district
courts.”) (brackets and internal quotation marks omitted).
Further, unlike the mere general right to “due process,”
Anderson, 483 U.S. at 639, or the abstract right to be free
from “excessive force,” al-Kidd, 563 U.S. at 742, the right
to notice is a specific, concrete guarantee that a person will
be informed of the government’s intent to deprive him or her
of property before doing so. See Mena, 226 F.3d at 1041.
Any reasonable official would have thus known that
deviating from this straightforward requirement—and
indeed dispensing with it entirely—violates the right to due
process.
We are further convinced that the obligation to provide
notice was clearly established given that Edwards was
seeking ex parte permission to destroy the firearms—a
permanent kind of deprivation. See Logan, 455 U.S. at 433.
This makes Edwards’s conduct even more egregious than the
kind prohibited in Fuentes, in which the Court struck down
state statutes authorizing the mere temporary deprivation of
goods through an ex parte writ of replevin. See 407 U.S.
at 81.
Additionally, we conclude Edwards had fair notice that
his conduct violated due process given that he acted in the
complete absence of statutory authority. See Rosenbaum v.
Washoe Cty., 663 F.3d 1071, 1079 (9th Cir. 2011) (denying
32 WRIGHT V. BECK
qualified immunity to officer who arrested individual
without any statutory authority). As we explained above, no
statute authorized Edwards’s decision to seek an ex parte
application for permission to destroy Wright’s property
without notifying Wright of his intent to do so. If anything,
the only express rule that applied made it clear that he needed
to provide notice. See Cal. Rules of Court, Rule 3.1203(a).
Further, the obviousness of the constitutional violation is
especially evident given the Ventura Court’s September
2011 instruction to attempt to resolve the dispute informally
and to return to court, if necessary. The record suggests that
Edwards knew notice should have been provided; otherwise,
he probably would not have told the court that Wright
presented no proof of ownership or insinuated that Wright
had abandoned his ownership claim.
Thus, although we do not identify a case with the exact
factual situation involved here, we conclude that in light of
the precedent that did exist at the time Edwards filed an ex
parte application for permission to destroy Wright’s
firearms, his actions fit within the “obvious” situation. See
Mena, 226 F.3d at 1041. It appears obvious to us, even
without a case addressing identical facts, that a state actor
cannot unilaterally seek to destroy one’s property without
first providing the individual notice of the intent to do so.
That is the only reasonable inference one can draw in light
of Mullane and its progeny. Yet despite knowing that
Wright had a pending claim of ownership, Edwards applied
to the Los Angeles Court, without notice to Wright, for an
order to destroy his property.
We thus conclude that the due process right to notice, as
alleged by Wright, was clearly established and, as a result,
Edwards is not entitled to qualified immunity.
WRIGHT V. BECK 33
D.
Finally, we address the district court’s conclusion that
City Attorney Feuer and LAPD Chief Officer Beck were
entitled to qualified immunity. Wright sued those officials
only in their official capacities. Qualified immunity is,
however, “available only to government officials sued in
their individual capacities” and is “not available to those
sued only in their official capacities.” Cmty. House, Inc. v.
City of Boise, Idaho, 623 F.3d 945, 965 (9th Cir. 2010). We
thus reverse the grant of qualified immunity for these
defendants.
III.
Defendants also urge us to affirm on alternative grounds.
We reject each argument in turn.
A.
First, Defendants argue that a § 1983 claim cannot be
predicated on a breach of a plea agreement. This argument
misconstrues Wright’s claims for several reasons. For one,
the City was not a party to the agreement, so summary
judgment cannot be affirmed in its favor on this ground.
Second, Wright is alleging constitutional violations
independent of the plea agreement: the plea agreement
neither created Wright’s possessory interest in the firearms
nor is reference to it necessary for the resolution of his
constitutional claims.
B.
We also reject Defendants’ contention that they are
entitled to “derivative, quasi-judicial immunity” because,
once the LAPD seized the contested firearms by warrant,
34 WRIGHT V. BECK
“the City” acted as a court custodian subject to court
orders. 21 That immunity extends to nonjudicial officers
“only if they perform official duties that are functionally
comparable to those of judges, i.e., duties that involve the
exercise of discretion in resolving disputes.” In re Castillo,
297 F.3d 940, 948 (9th Cir. 2002). Defendants fail to show,
however, that Edwards performed a duty that was
functionally comparable to a judge by keeping custody of
Wright’s firearms. Defendants also do not show Edwards
performed a functionally comparable duty of a judge when
they sought a court order to destroy the property. This
immunity does not apply under this theory.
Nor is Edwards entitled to quasi-judicial immunity
because he performed “purely administrative acts.” See id.
at 952. That immunity applies when a non-judicial officer
performs a “non-discretionary or administrative function . . .
at the explicit direction of a judicial officer.” Zoretic v.
Darge, 832 F.3d 639, 644 (7th Cir. 2016). Defendants
appear to suggest that they are entitled to immunity under
this theory because they complied with a court order to
destroy the firearms. Defendants fail to cite any case,
however, that shows that the immunity extends to state
actors who sought and obtained the order improperly in the
first instance. Also, Edwards exercised discretion in
deciding when or whether to seek the order permitting
destruction of the firearms. We thus reject this contention.
21
Defendants do not specify to whom the immunity applies, but
rather appear to suggest it applies to all of them. Defendants, however,
provide no authority for the proposition that a municipality or individuals
sued in their official capacity can qualify for this kind of immunity. In
any event, we need not resolve this issue because, even assuming the
immunity can apply in such circumstances, Defendants fail to show that
the immunity applies.
WRIGHT V. BECK 35
C.
Defendants also argue that Wright cannot bring a § 1983
claim because he released his property interest in the
firearms once he signed the plea agreement. They argue that
Wright abandoned his possessory interests because he
consented to the LAPD keeping the firearms and deciding
whether he was the lawful owner of the firearms.
Defendants are wrong for several reasons, but the most
important one is they overstate the LAPD’s power to decide
Wright’s ownership claims. The plea agreement did not
provide the LAPD with unfettered control over the guns. To
be sure, the agreement allowed the LAPD to make an initial
ownership decision, but Wright could challenge that
determination by filing a motion to compel return of his
firearms in a court—which he did. Thus, contrary to
Defendants’ suggestion, Wright continued to maintain a
legitimate possessory interest in the firearms.
Defendants also argue that California Penal Code
sections 34000 and 18275 divested Wright of his ownership
interest after the one-year period expired. But, for the
reasons explained above in Part II.A., this claim fails
because neither provision diminished Wright’s possessory
interests.
D.
Defendants also argue that a state court order precludes
us from deciding whether due process entitled Wright to
notice of the ex parte application for a destruction order.
Defendants specifically cite the Los Angeles Court’s
decision in In re Complaint of Michel & Associates, P.C.,
No. BH011834 (Sept. 18, 2018). We are not persuaded.
36 WRIGHT V. BECK
“[A] federal court considering whether to apply issue
preclusion based on a prior state court judgment must look
to state preclusion law.” McInnes v. California, 943 F.2d
1088, 1092–93 (9th Cir. 1991). In California, “[i]ssue
preclusion prohibits the relitigation of issues argued and
decided in a previous case, even if the second suit raises
different causes of action.” DKN Holdings LLC v. Faerber,
352 P.3d 378, 386 (Cal. 2015) (citation omitted). “[I]ssue
preclusion applies: (1) after final adjudication (2) of an
identical issue (3) actually litigated and necessarily decided
in the first suit and (4) asserted against one who was a party
in the first suit or one in privity with that party.” Id. at 387.
As for the second requirement, the party seeking to assert
issue preclusion must show that each proceeding contained
“identical factual allegations.” Lucido v. Superior Court,
795 P.2d 1223, 1225 (Cal. 1990) (quotation marks omitted).
The factual allegations considered in Michel &
Associates were not identical to ones presented here, nor
were they necessary to the court’s final determination. In
Michel & Associates, a gun-rights group, the California Rifle
and Pistol Association, of which Wright is a member, sent a
letter to the Los Angeles Court notifying it of what it deemed
to be the LAPD’s “inappropriate and illegal practice of
obtaining invalid court orders relating to LAPD’s disposition
of seized property.” The court issued an Order to Show
Cause, asking the parties to brief, among other issues,
“[w]hether [the Los Angeles Court] should adopt a policy
requiring a police agency seeking an order to dispose of
property seized under a search warrant where no criminal
case has been filed to give notice of the application for the
order to likely claimants of the seized property pursuant to
[California] Penal Code section 1536.” The court ultimately
decided that, under Perkins, the court need not adopt such a
policy.
WRIGHT V. BECK 37
Wright’s claim here, however, addresses a different issue
involving different factual allegations. As explained above,
Wright alleges a due process violation because he was never
given notice of Edwards’s intent to apply ex parte for an
order permitting destruction of Wright’s firearms when he
continued to assert an ownership interest in them. What due
process demands on these facts is different from the issue
decided in Michel & Associates, where the court was
considering adopting a prospective rule that universally
provided notice to all “people or entities likely to claim an
interest in the property.”
We thus reject this argument. 22
IV.
Finally, because we reverse the district court’s grant of
summary judgment on Wright’s Fourteenth Amendment due
process claim, we reverse the district court’s grant of
summary judgment on his failure-to-train claim, which the
court characterized as derivative of Wright’s due process and
Fourth Amendment claims, and remand for further
proceedings consistent with this opinion.
V.
Because a rational trier of fact could find that Wright’s
due process rights were violated and that Edwards was not
entitled to qualified immunity, we reverse the district court’s
grant of summary judgment on this claim and his Monell
22
Because we conclude the issues were not identical, we need not
decide whether Wright, as a member of the California Rifle and Pistol
Association, was in “privity” with it. See Rodriguez v. City of San Jose,
930 F.3d 1123, 1130 (9th Cir. 2019), pet. for cert. filed, No. 19-1057
(Feb. 21, 2020).
38 WRIGHT V. BECK
failure-to-train claim against Beck, Feuer, and the City. We
affirm the judgment as to Aubry and Tompkins. We remand
for proceedings consistent with this opinion. 23
AFFIRMED in part, REVERSED in part, and
REMANDED. Appellant shall recover his costs on appeal.
23
In light of Judge Real’s passing, we need not address Wright’s
request to reassign the case on remand.