A short one from the U.S. Court of Appeals for the Fifth Circuit. In RBII, L.P. v. City of San Antonio, No. 11-50626 (Apr. 23, 2013), the court overturned a jury verdict that the city violated the due process and Fourth Amendment rights of a property owner when the city demolished its building without first providing notice that it was going to do so.
The city believed a structure owned by the plaintiff was dilapidated and a danger, and needed to be demolished immediately. The city undertook environmental review, exhausted its internal procedures for demolition, notified the Historic Preservation office, turned off the utilities, and checked the permit register to see if any repairs were made. It accomplished this all in about two weeks. But it didn't notify the property owner before it took down the structure.
The owner filed suit in state court, and the city removed it to federal court. The owner asserted among other things that the city violated it procedural due process right to a predeprivation notice, and its Fourth Amendment right against unreasonable seizure. After a jury trial, the district court awarded the plaintiff $27,500 in damages.
The Fifth Circuit bacated the verdict and remanded the case. Predeprivation notice is unnecessary where an emergency presents a threat to public safety, and postdeprivation process is sufficient. If the city acted in accordance with its emergency procedures -- which it did here -- its determination that there was an emergency is "entitled to deference." Slip op. at 6. "In such cases, the relevant inquiry is not whether an emergency actually existed, but whether the State acted arbitrarily or otherwise abused its discretion in concluding that there was an emergency requiring summary action." Id. It doesn't matter whether there actually was an emergency. The court held that the district court wrongly instructed the jury that the city was only excused from providing predeprivation notice if there was an immediate danger to the public, not mentioning the part about discretion and compliance with its emergency procedures. Verdict vacated, sent back for a new trial.
The problem also infected the Fourth Amendment verdict, even though the jury instructions there were not in error. The erroneous due process instruction "would have led the jury to believe that such a decision can only be reasonable when there is actually 'an immediate danger to the public.'" Slip op. at 10-11.