UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DONALD HIRSCH,
Plaintiff-Appellant,

v.                                                                    No. 98-1551

CITY OF BOWIE,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(CA-97-1696-DKC)

Submitted: December 1, 1998

Decided: December 29, 1998

Before MURNAGHAN, HAMILTON, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Donald Hirsch, Appellant Pro Se. Elissa Doe Levan, MILES &
STOCKBRIDGE, Columbia, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Donald Hirsch appeals from the district court's order granting sum-
mary judgment in favor of the Defendant in Hirsch's 42 U.S.C.A.
§ 1983 (West Supp. 1998) case seeking to enjoin the Defendant from
instituting a second proceeding against him for constructing a fence
on his property in violation of Section 26-2 of the city code. Finding
no reversible error, we affirm.

Hirsch contends that allowing the Defendant to proceed against
him a second time constitutes a violation of the Double Jeopardy
Clause because § 26-2's prescribed penalty is criminal in nature. The
Supreme Court has recently addressed the proper inquiries for deter-
mination of whether a penalty is a criminal penalty, which invokes the
protections of the Double Jeopardy Clause, or a civil penalty, which
does not. See Hudson v. United States, 522 U.S. 93 (1997). In
Hudson, the Court abrogated its prior statements in United States v.
Halper, 490 U.S. 435 (1989), and returned to its precedent articulated
in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), and revived
in United States v. Ursery, 518 U.S. 267 (1996). Under this precedent,
courts are to engage in a two-prong, multi-factor test to determine
whether penalties are civil or criminal in nature.

First, the court must ask whether the legislature,"`in establishing
the penalizing mechanism, indicated either expressly or impliedly a
preference for one label or the other.'" Hudson, 522 U.S. at ___, 66
U.S.L.W. 4024, 4026 (quoting United States v. Ward, 448 U.S. 242,
248 (1980)). If the legislature intended a criminal penalty, then the
inquiry ends and the protections of the Double Jeopardy Clause are
invoked. If the legislature intended a civil penalty, however, courts
must then ask whether the "statutory scheme [is] so punitive in either
purpose or effect as to `transform what was clearly intended as a civil
remedy into a criminal penalty.'" Hudson, 522 U.S. at __, 66
U.S.L.W. at 4026 (quoting Rex Trailer Co. v. United States, 350 U.S.
148. 154 (1956)). In making this determination, courts should con-
sider:

          (1) "[w]hether the sanction involves an affirmative disabil-
          ity or restraint"; (2) "whether it has historically been

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          regarded as a punishment"; (3) "whether it comes into play
          only on a finding of scienter"; (4) "whether its operation will
          promote the traditional aims of punishment--retribution and
          deterrence"; (5) "whether the behavior to which it applies is
          already a crime"; (6) "whether an alternative purpose to
          which it may rationally be connected is assignable for it";
          and (7) "whether it appears excessive in relation to the alter-
          native purpose assigned."

Id. (quoting Kennedy, 372 U.S. at 168-69).

Having applied these inquiries in the above manner to the ordi-
nance at issue in Hirsch's appeal, we conclude that the penalty pre-
scribed by § 26-2 is a civil penalty which does not invoke the
protections of the Double Jeopardy Clause. Accordingly, we affirm
the district court's grant of summary judgment in favor of the Defen-
dant. We dispense with oral argument because the facts and legal con-
tentions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

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