11-2947-cv (L)
Hines v. City of Albany
                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH
THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
29th day of March, two thousand thirteen.

Present:
            PETER W. HALL,
            DEBRA ANN LIVINGSTON,
            CHRISTOPHER F. DRONEY,
                        Circuit Judges.
____________________________________________________

Constance Hines, Marshay Hines,

                          Plaintiffs – Appellees,

                 v.                                                         No. 11-2947-cv (L);
                                                                                 12-1126 (con)

Albany Police Department, John Monte, Albany Police Officer, Alfred Martin, Albany Police
Officer, Brian Plante, Albany Police Officer, Robert Mulligan, Albany Police Officer, Robert
Shunck, Albany Police Officer, Steven Krokoff, Albany Assistant Chief of Police, Jeffrey Hyde,
Tim Haggerty, Albany Police Officer,

                          Defendants,

City of Albany, James W. Tuffey, Albany Chief of Police, Brian Quinn, Albany Police Officer,
Jeff Roberts, Michael Haggerty, Albany Police Officer,

                          Defendants – Appellants.

____________________________________________________

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FOR APPELLANTS:                       John W. Liguori, Rehfuss, Liguori & Associates, P.C.,
                                      Latham, New York.

FOR APPELLEES:                Thomas Marcelle, Slingerlands, New York, Philip G. Steck
                              and Kimberly G. Finnigan, Cooper Erving & Savage LLP,
                              Albany, New York.
____________________________________________________

       Appeal from a judgment of the United States District Court for the Northern District of

New York (McCurn, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Defendants City of Albany, Albany Chief of Police James W. Tuffey, and Albany Police

Officers Brian Quinn, Jeff Roberts, and Michael Haggerty (collectively “Defendants”) appeal

from a judgment of the district court entered on cross-motions for summary judgment granting in

part and denying in part each motion but effectively concluding that, on the claim that

Defendants had unlawfully seized and retained Constance Hines’ vehicle, summary judgment in

favor of Plaintiffs Constance Hines and Marshay Hines (collectively “Plaintiffs”) was warranted.

On appeal, Defendants contend that summary judgment in Plaintiffs’ favor was not warranted on

this claim that Defendants unlawfully seized and retained the vehicle and that Defendants were

otherwise entitled to qualified immunity. Defendants also contend that the City of Albany is not

liable under Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978).

We assume the parties’ familiarity with the underlying facts, the procedural history of the case,

and the issues on appeal, and we discuss these only as necessary to explain our decision to affirm

judgment in Plaintiffs’ favor.

       In the Krimstock line of cases that this Circuit decided in 2002, 2004, and 2006, we

clearly established the procedural safeguards that are constitutionally required when the


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government seizes a personal vehicle. See Krimstock v. Kelly, 464 F.3d 246 (2d Cir. 2006)

(“Krimstock III”); Jones v. Kelly, 378 F.3d 198 (2d Cir. 2004) (“Krimstock II”); Krimstock v.

Kelly, 306 F.3d 40 (2d Cir. 2002) (“Krimtock I”). By the time that Defendants seized and

impounded Constance Hines’ vehicle in 2006, we had already outlined the procedure required

when vehicles are seized for forfeiture purposes. In part because of the government’s direct

pecuniary interest in seizing vehicles for forfeiture, we insisted that the probable cause

determination by the officer effecting the warrantless seizure must be supplemented by

additional process: “the Due Process Clause requires that claimants be given an early opportunity

to test the probable validity of further deprivation, including probable cause for the initial

seizure, and to ask whether other measures, short of continued impoundment, would satisfy the

legitimate interests of the [government] in protecting vehicles from sale or destruction pendent

lite.” Krimstock I, 306 F.3d at 68.

       Although Defendants acknowledge that they did not afford Constance Hines such

process, they resist the application of the rule of Krimstock I. Defendants insist that the vehicle

was not seized for forfeiture purposes; but rather it was seized as evidence for use in the criminal

prosecution of Prince Hines. We did not elaborate on the procedures required for vehicles seized

as evidence until Krimstock III, after Constance Hines’ vehicle was seized (though well before

Defendants released the car back into her custody). But there is nothing in the record to suggest

that the vehicle was or contained evidence – that is, material that would “aid in a particular

apprehension or conviction.” Warden v. Hayden, 387 U.S. 294, 307 (1967). Defendants have

offered no theory under which the car itself could aid in the prosecution of Prince Hines, and we

can think of none. Even if Defendants had probable cause to believe that the vehicle contained

narcotics at the time of the seizure – and they have not supplied information sufficient to support



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such a finding – they could not have maintained that position after their inventory search of the

vehicle shortly thereafter. In sum, Defendants either violated Constance Hines’ due process

rights by failing to afford her a hearing promptly after seizing her car for forfeiture purposes, or

they violated her right against unreasonable seizures by seizing her car for evidentiary purposes

without probable cause.

       Defendants also contend that the City of Albany cannot be liable under a Monell claim.

We disagree. Plaintiffs based their Monell claim on a theory that “municipal liability may be

imposed for a single decision by municipal policymakers . . . whose acts or edicts may fairly be

said to represent official policy.” Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986).

“[W]here action is directed by those who establish governmental policy, the municipality is

equally responsible whether that action is to be taken only once or to be taken repeatedly”;

municipal liability, however, “attaches where—and only where—a deliberate choice to follow a

course of action is made from among various alternatives by the official or officials responsible

for establishing final policy with respect to the subject matter in question.” Id. at 483; see also

Vives v. City of N.Y., 524 F.3d 346, 350 (2d Cir. 2008). In Pembaur, the Supreme Court looked

to “standard office procedure” to define the nature of the relationship between the final

decisionmaker—in that case, the county prosecutor—and the individuals directed to carry out the

final decisionmaker’s order—the county sheriffs—in order to determine the extent to which the

county prosecutor’s legal advice was “a deliberate choice to follow a course of action” that

ultimately resulted in a constitutional violation. Pembaur, 475 U.S. at 484-85.

       As was the case in Pembaur, in this case the Albany Police Department followed a

“standard” procedure in seizing the vehicle and handling Constance Hines’ complaints. Under

the Albany City Code, the Police Chief is expressly authorized to “make, adopt and enforce such



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reasonable rules, orders and regulations” necessary for the Police Department’s “performance of

all duties.” Albany City Code § 42-6(A). The Albany Police Department has a designated unit

that handles the seizure and holding of property, including vehicles, but the head of this unit,

defendant Michael Haggerty, “actually reports to” the Police Chief. The Police Chief testified

that he retained some discretion to refuse to seize a vehicle when the Albany Police Department

was working in concert with another law enforcement agency. The Police Chief further testified

that it was the policy of the Department for the Police Chief to handle the complaints of citizens.

Under these circumstances, the Police Chief was the final decisionmaker responsible for

establishing the policy “with respect to the subject matter in question” in this case.

       Further, the “official responsible for establishing final policy with respect to the subject

matter in question”—the Police Chief—made “a deliberate choice to follow a course of action”

that resulted in the constitutional deprivation Constance Hines suffered. He testified that he was

aware of the continued “safekeeping” of Constance Hines’ vehicle, and he further testified that,

“I know I talked to her on a number of occasions,” which he specified was five times. In

response to a letter from Constance Hines’ counsel, the Police Chief responded by letter that the

“vehicle is in the possession of the Albany Police Department” and that the Department and

another agency had “seized the vehicle” to be “held by these agencies until [a narcotics]

investigation is complete.” The Police Chief thus knew of and addressed Hines’ complaints

about the continued retention of her vehicle and, like the county prosecutor in Pembaur, the

Police Chief made a “considered decision” that the Albany Police Department would continue to

retain the vehicle. That this decision violated the Fourth Amendment is unaltered by the fact that

the Police Department was cooperating with the Attorney General’s Organized Crime Task




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Force in seizing the vehicle for the Task Force’s prosecution of individuals involved in a

narcotics conspiracy.

       We have considered all of Defendants’ remaining arguments and find them to be without

merit. The judgment of the district court is AFFIRMED.

                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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