     Case: 11-50333     Document: 00511872526         Page: 1     Date Filed: 05/31/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                           May 31, 2012

                                       No. 11-50333                        Lyle W. Cayce
                                                                                Clerk

PAUL CHANCE KINNISON,

                                                  Plaintiff – Appellee
v.

CITY OF SAN ANTONIO,

                                                  Defendant – Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:08-CV-421


Before REAVLEY, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
        The City of San Antonio, Texas, (the “City”) appeals from the district
court’s grant of summary judgment in favor of Paul Chance Kinnison on his
Fourth and Fourteenth Amendment claims brought under 42 U.S.C. § 1983 and
subsequent jury-determined damages award. On the state of the record, we
conclude that Kinnison did not establish that the City’s actions were
unreasonable as a matter of law. We therefore VACATE the judgment below
and REMAND for proceedings consistent with this opinion.

        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 11-50333   Document: 00511872526       Page: 2   Date Filed: 05/31/2012



                                  No. 11-50333

                      I. Facts and Procedural History
      On April 8, 2008, Alice Guajardo, a Dangerous Premises Inspector for the
City, investigated a house and accessory structure at 332 East Myrtle (the
“Property”) in response to a dangerous-premises hotline phone call. Guajardo’s
investigation revealed that the Property had fire damage to and deterioration
of its roof, walls, and foundation. She determined that the Property “pos[ed] [an]
imminent danger to public health and safety,” and she reported the Property to
Ramiro Carrillo, the City’s Senior Building Inspector. Carrillo’s inspection
confirmed Guajardo’s initial findings, and he determined that the Property’s
“extremely poor structural condition” required “immediate demolition.”
      Guajardo facilitated the demolition pursuant to San Antonio Code of
Ordinances § 6-175 (the “Ordinance”). At the time of Guajardo’s inspection, the
Ordinance provided:
  Sec. 6-175. Emergency cases; summary abatement by city officials.

      (a) In cases where it appears to the code compliance director, the
      fire chief, or the director of development services, that due to one or
      more structural conditions threatening the structural integrity of a
      building or structure, there is clear and imminent danger to the life,
      safety or property of any person unless a dangerous building or
      structure, as defined in this article, is immediately repaired or
      demolished, especially in cases where such a very dangerous
      building or structure, is located within one thousand (1,000) feet of
      a public or private elementary school, middle school, high school, or
      a state recognized day care center, anyone of those officials (the
      official) shall execute the immediate vacation and or repair or
      demolition of such very dangerous building or structure, regardless
      of the date of its construction. Such summary action shall require
      concurrence from at least one other of the aforesaid officials. In the
      case of summary demolition, concurrence of the director of
      development services shall be required. Such concurrence shall
      include a determination that under the circumstances no other
      abatement procedure is reasonably available except demolition. The
      official taking action shall thereafter immediately provide notice to
      the [Dangerous Structures Determination Board (“DSDB”)], of the

                                        2
   Case: 11-50333    Document: 00511872526       Page: 3    Date Filed: 05/31/2012



                                   No. 11-50333

      accomplished abatement; and to the owner and
      lienholders/mortgagees of said dangerous building. All costs,
      including asbestos and special or hazardous waste removal/disposal,
      of such emergency summary repair, vacation, or demolition of such
      dangerous building shall be collected in the manner provided by
      law.

      (b) The foregoing emergency abatement action shall be executed not
      later than seventy two (72) weekday hours, exclusive of weekends
      and holidays, after the official views the subject building or
      structure.

      (c) The foregoing emergency abatement action is hereby
      acknowledged as being outside state statutory prescriptions. The
      authority for this section is asserted under the City of San Antonio
      Charter as power of a home-rule city, so provided by the constitution
      of the State of Texas.

      (d) Upon ordering and executing emergency abatement by
      demolition, the city official responsible shall make an appropriate
      affidavit evidencing his/her actions. Copies of the affidavit shall be
      maintained among the official records of the respective official’s
      department and in the minutes records of the DSDB for two (2)
      years.

      Guajardo identified the Property’s owner as the Deepak Land Trust
(“Deepak”),1 took photos and a video of the Property, prepared certain City
inspection forms, mapped the Property’s location to the nearest school,
submitted an environmental survey report, arranged for the cessation of gas and
electric service, and notified the City’s Historic Preservation Office and the
relevant City Councilwoman. Guajardo also informed Deepak’s trustee, who
reported that he had recently sold the Property, but did not have contact
information for its new owner. Guajardo also checked if anyone had filed a work
permit for the Property, but the last such permit dated to 2006. Strangely, in


      1
       Bexar County Appraisal District records “current” to April 6, 2008, showed that
Deepak owned the Property.

                                          3
   Case: 11-50333      Document: 00511872526         Page: 4    Date Filed: 05/31/2012



                                      No. 11-50333

Kinnison’s view, Guajardo never examined county deed records where, Kinnison
contends, she would have found a newly recorded deed reflecting the recent sale
of which she had been advised.
       Per the Ordinance, the City’s Director of Development Services and
Director of Housing and Neighborhood Services executed affidavits declaring the
Property to be a “clear and imminent danger to the life, safety, and/or property
necessitating an immediate demolition.”2 On April 17, 2008, a demolition crew
arrived at the Property, encountering a contractor that Kinnison had hired to do
foundation repair work. Regardless, the Property was demolished.
       Kinnison subsequently filed the underlying suit in state court, bringing a
host of state and federal claims. The City removed. Ultimately, the district
court granted summary judgment in favor of Kinnison only on his § 1983 claims
for violations of his Fourth Amendment right to be free from unreasonable
seizures and his Fourteenth Amendment procedural due process rights,
dismissing or granting summary judgment for the City on the remaining claims.
The parties dispute here only the claims on which Kinnison prevailed. A jury
trial on damages resulted in a $52,000 award in Kinnison’s favor. The district
court denied the City’s post-trial motions, and the City timely appealed.
                               II. Standard of Review
       This court reviews a grant of summary judgment de novo, applying the
same standard as the district court. Gelin v. Hous. Auth. of New Orleans, 456
F.3d 525, 527 (5th Cir. 2006). Summary judgment is appropriate if the moving
party can show that “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A
factual dispute is ‘genuine’ where a reasonable [factfinder] would return a
verdict for the non-moving party.” Chiu v. Plano Indep. Sch. Dist., 339 F.3d 273,

       2
        Kinnison does not challenge that these officials are two of the three decisionmakers
envisioned by the Ordinance.

                                             4
   Case: 11-50333        Document: 00511872526          Page: 5     Date Filed: 05/31/2012



                                        No. 11-50333

282 (5th Cir. 2003) (citation omitted). “An issue is material if its resolution could
affect the outcome of the action.” Weeks Marine, Inc. v. Fireman’s Fund Ins. Co.,
340 F.3d 233, 235 (5th Cir. 2003) (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)). In considering a summary judgment ruling, this court
views the evidence in the light most favorable to the nonmoving party. United
Fire & Cas. Co. v. Hixson Bros., 453 F.3d 283, 285 (5th Cir. 2006).
“Unsubstantiated         assertions,     improbable       inferences,     and     unsupported
speculation,” however, “are not sufficient to defeat a motion for summary
judgment.” Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir. 2003).
           III. A Factfinder Should Determine Whether the City
                  Violated Kinnison’s Constitutional Rights
                              A. The City Waived Monell
       Under Monell v. Department of Social Services of the City of New York, 436
U.S. 658 (1978), and its progeny, the fact that a constitutional violation occurred
is ordinarily not enough to trigger municipal liability.3 Municipal liability also
requires proof of an “official policy,” a “final” policymaker, and policymaker
“knowledge” of, or “deliberate indifference” to, a risk of constitutional violations.
See, e.g., Burge v. St. Tammany Parish, 336 F.3d 363, 369-73 (5th Cir. 2003);
Piotrowski v. City of Houston, 237 F.3d 567, 578-83 (5th Cir. 2001). Here,
however, the City rested its entire § 1983 defense on whether Kinnison
established a constitutional violation, essentially collapsing the municipal-
liability inquiry into a single, dispositive question.4 Indeed, the City failed to


       3
        See also City of Canton v. Harris, 489 U.S. 378 (1989); City of St. Louis v. Praprotnik,
485 U.S. 112 (1988); Pembaur v. City of Cincinnati, 475 U.S. 469 (1986).
       4
           The City briefly contended in its motion to alter or amend judgment that Kinnison
“nowhere demonstrated a policymaker or an official policy as a matter of law entitling him to
summary judgment” and that there was insufficient evidence “for a reasonable jury to have
concluded that the City was liable on these elements under 42 U.S.C. § 1983.” That was too
little, too late. See, e.g., Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990) (“Motions
for a new trial or to alter or amend a judgment must clearly establish either a manifest error

                                                5
   Case: 11-50333       Document: 00511872526           Page: 6     Date Filed: 05/31/2012



                                        No. 11-50333

cite Monell in its briefs on appeal and expressly disavowed at oral argument—in
response to several questions—any reliance on the case and its principles. We
first determine, then, whether Monell’s requirements can be waived.
       Although our circuit has not squarely addressed the issue, the weight of
circuit authority suggests that it can. See Ford v. Cnty. of Grand Traverse, 535
F.3d 483, 491-99 (6th Cir. 2008) (affirming summary judgment for plaintiff
where the municipality had “abandoned” deliberate-indifference arguments);
Kelly v. City of Oakland, 198 F.3d 779, 785 (9th Cir. 1999) (affirming § 1983
liability where municipality first raised Monell in reply to motion for new trial;
the argument, “if properly placed in issue, would have affected the course of the
jury trial”); Morro v. City of Birmingham, 117 F.3d 508, 514-16 (11th Cir. 1997)
(affirming summary judgment for plaintiff even though it was “extremely
doubtful” that the identified policymaker was a “final” policymaker; had the
municipality raised Monell, it could have been granted “judgment as a matter
of law . . . early in the proceedings”).5
       We join these courts in concluding that, where the municipality in
question has clearly and unequivocally waived the protections of Monell, we can



of law or fact or must present newly discovered evidence. These motions cannot be used to
raise arguments which could, and should, have been made before the judgment issued.”)
(internal quotation marks and citation omitted; emphasis added). This is particularly true
where, as here, the City unequivocally waives the argument on appeal.
       5
         But see Smith v. Chi. Sch. Reform Bd. of Trs., 165 F.3d 1142, 1149 (7th Cir. 1999)
(“Monell does not create a ‘defense.’ It identifies an element of a plaintiff’s claim, so the
burden is on the plaintiff to demonstrate the essential policy or custom.” (citing Bd. of Cnty.
Comm’rs v. Brown, 520 U.S. 397, 403 (1997))).
       The Seventh Circuit nonetheless allows municipalities to affirmatively waive certain
aspects of Monell. See, e.g., Evans v. City of Chicago, 513 F.3d 735, 741 (7th Cir. 2008) (“Thus,
the City waived its right under Monell not to be held liable in damages without proof that the
City by its ‘policy or custom’ caused the alleged constitutional violation.”) (citation omitted);
Lopez v. City of Chicago, 464 F.3d 711, 717 n.1 (7th Cir. 2006) (“The City . . . entered a Monell
waiver consenting to entry of judgment against it in the event ‘the finder of fact in this case
finds that any City of Chicago employee violated Plaintiff’s rights under the Constitution.’”).

                                               6
   Case: 11-50333       Document: 00511872526          Page: 7     Date Filed: 05/31/2012



                                       No. 11-50333

accept that waiver and treat those elements as satisfied.6 Municipalities once
enjoyed virtually absolute immunity from § 1983 liability. See Monell, 436 U.S.
at 663 (overruling Monroe v. Pape, 365 U.S. 167 (1961) (holding that
municipalities were not “persons” subject to § 1983)). Although Monell refined
this potentially draconian doctrine to permit recovery when “action pursuant to
official municipal policy of some nature caused a constitutional tort,” id. at 691,
it preserved municipal immunity against other claims. Id. at 691-94.
       If the states may waive bedrock constitutional protections such as
sovereign immunity, however, we see no reason to prohibit cities within a state
from affirmatively discarding protections of statutory and judicial creation. Cf.
Clark v. Barnard, 108 U.S. 436, 447 (1883) (“The immunity from suit belonging
to a state, which is respected and protected by the constitution within the limits
of the judicial power of the United States, is a personal privilege which it may
waive at pleasure . . . .”). It also makes no difference whether waiver here more
properly concerns a question of law or fact. See Morro, 117 F.3d at 516 n.3 (“We
note that the City’s failure to preserve its Monell defense for trial is not excused
by the fact that . . . the issue of final policymaker status is a legal question for
the court, not the jury. Counsel may waive the right to have an issue decided by
failing to identify the issue to the court . . . regardless of whether the issue is a
legal or factual one.”). Accordingly, as below, the City’s liability rises and falls
with whether Kinnison can establish a constitutional violation.
           B. Fourteenth Amendment Procedural Due Process Claim
       The Supreme Court has “described ‘the root requirement’ of the Due
Process Clause as being ‘that an individual be given an opportunity for a hearing
before he is deprived of any significant property interest.’” Cleveland Bd. of


       6
         Cf. Wood v. Milyard, 132 S. Ct. 1826, 1830 (2012) (noting, in habeas context, that “[a]
court is not at liberty . . . to bypass, override, or excuse a State’s deliberate waiver of a
limitations defense.”) (citation omitted).

                                               7
   Case: 11-50333      Document: 00511872526         Page: 8     Date Filed: 05/31/2012



                                      No. 11-50333

Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (citation omitted). “Due process,”
however, “does not require that a property owner receive actual notice before the
government may take his property.” Jones v. Flowers, 547 U.S. 220, 226 (2006)
(citing Dusenbery v. United States, 534 U.S. 161, 170 (2002)). A state actor need
only provide “‘notice 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.’” Id. (citing Mullane v. Cent. Hanover
Bank & Trust Co., 339 U.S. 306, 314 (1950)).7
       In “emergency situations,” moreover, notice and hearing requirements
yield to the exigencies of “summary administrative action.” Hodel v. Va. Surface
Mining & Reclamation Ass’n, 452 U.S. 264, 299-300 (1981) (collecting cases).
“[W]here a State must act quickly, or where it would be impractical to provide
predeprivation process, postdeprivation process satisfies the requirements of the
Due Process Clause.” Gilbert v. Homar, 520 U.S. 924, 931 (1997) (collecting
cases). “Protection of the health and safety of the public is a paramount
governmental interest which justifies summary administrative action. Indeed,
deprivation of property to protect the public health and safety is ‘[o]ne of the
oldest examples’ of permissible summary action.” Hodel, 452 U.S. at 300
(quoting Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 599 (1950)). In
such cases, “[t]he relevant inquiry is not whether a [summary action] order
should have been issued . . . , but whether the statutory procedure itself is
incapable of affording due process.” Id. at 302 (citation omitted).8

       7
          Although courts generally analyze procedural due process claims under the well-
known Mathews v. Eldridge balancing test, 424 U.S. 319, 335 (1976), the Supreme Court
clarified in Dusenbery that Mullane’s reasonable-under-the-circumstances standard applies
to such claims premised on allegedly inadequate notice. See 534 U.S. at 167-68.
       8
        See also Ewing, 339 U.S. at 599 (“Discretion of any official may be abused. Yet it is
not a requirement of due process that there be judicial inquiry before discretion can be
exercised. It is sufficient, where only property rights are concerned, that there is at some
stage an opportunity for a hearing and a judicial determination.” (collecting cases)).

                                             8
   Case: 11-50333       Document: 00511872526          Page: 9    Date Filed: 05/31/2012



                                       No. 11-50333

       Kinnison challenged only the manner in which the City applied the
Ordinance in his specific case; he made no cognizable argument that the
Ordinance was facially unconstitutional.9 The Ordinance contains several
procedural protections. It requires that two of three designated City officials
concur that, “due to one or more structural conditions threatening [its]
structural integrity,” a specific property presents an “imminent danger to the
life, safety or property of any person.” Before demolition may occur, the officials
must also agree that “under the circumstances no other abatement procedure is
reasonably available.” The Ordinance also exists against a backdrop of the
City’s Residential Building Codes, which are based on International Building
Code standards. See San Antonio, Tex., Code of Ordinances part II, ch. 6
(“Buildings”).    For summary judgment purposes, then, the Ordinance was
presumptively constitutional, and the City was permitted to rely upon it.
       In the absence of a deficient procedural regime, a procedural due process
claim may nonetheless succeed if the state actor unreasonably decided to
summarily effect a property deprivation. See Patel v. Midland Mem. Hosp. &
Med. Ctr., 298 F.3d 333, 341 (5th Cir. 2002) (“When determining the amount of
process constitutionally due [the plaintiff] prior to the [property deprivation], the
key question is not whether [the plaintiff] was actually a danger, but whether
the [state actor] had reasonable grounds for suspending him as a danger.” (citing



       9
         In the substantive due process section of his motion for summary judgment, Kinnison
asserted that the Ordinance was “so vague, . . . so teleologically non-functional, and . . . so
arbitrarily applied” that it failed constitutional muster, contending primarily that it did not
define when a structure posed an “imminent danger.” However, the City’s Code of Ordinances
extensively defines “dangerous building,” § 6-156, and the Ordinance refers to “dangerous
buildings or structures.” The Ordinance, moreover, narrows the definition of “dangerous
buildings.” A “dangerous building” requiring summary abatement under the Ordinance is one
that has “one or more structural conditions threatening [its] structural integrity” and that
poses a “clear and imminent danger . . . unless . . . immediately repaired or demolished.” The
district court granted summary judgment for the City on Kinnison’s substantive due process
claim, and Kinnison did not cross-appeal.

                                              9
  Case: 11-50333       Document: 00511872526         Page: 10     Date Filed: 05/31/2012



                                       No. 11-50333

Gilbert, 520 U.S. at 933)). Evaluating such claims, however, requires striking
a delicate balance. Generally, a state actor’s adherence to its summary-action
procedures deserves deference. See, e.g., Freeman v. City of Dallas, 242 F.3d
642, 653 & n.18 (5th Cir. 2001) (en banc) (observing that the “ultimate test of
reasonableness is fulfilled . . . by the City’s adherence to its ordinances and
procedures as a prelude to” abatement; “a showing of unreasonableness in the
face of the City’s adherence to its ordinance is a ‘laborious task indeed’” (quoting
Soldal v. Cook Cnty., 506 U.S. 56, 71 (1992))). Courts must avoid “subjecting a
decision to invoke an emergency procedure to an exacting hindsight analysis,
where every mistake, even if made in good faith, becomes a constitutional
violation.” Catanzaro v. Weiden, 188 F.3d 56, 63 (2d Cir. 1999) (reh’g op.).
Courts instead should exercise restraint and second-guess an emergency action
only when shown to be arbitrary or an abuse of discretion. See WWBITV, Inc.
v. Vill. of Rouses Point, 589 F.3d 46, 51 (2d Cir. 2009) (citation omitted).
       With these principles in mind, we turn to the district court’s procedural
due process ruling. The district court granted Kinnison summary judgment
because it concluded that Kinnison’s identity was readily available to the City;
that the City was required to give Kinnison at least constructive notice of the
demolition; that the passage of nine days between inspection and demolition was
near-dispositive evidence that the City’s imminent-danger determination was
unreasonable; and that pre-deprivation process was available under the Texas
nuisance-abatement statute.10




       10
         The district court also was concerned that cities could circumvent Texas nuisance-
abatement procedural protections merely by characterizing a property as an “imminent
danger” rather than a “nuisance.” The Supreme Court has suggested an antidote to this
concern. See Hodel, 452 U.S. at 302 & n.46 (observing that courts may step in “if a pattern of
abuse and arbitrary action [is] discernible from review of an agency’s administration of a
summary procedure”).

                                             10
  Case: 11-50333        Document: 00511872526          Page: 11     Date Filed: 05/31/2012



                                        No. 11-50333

       Texas nuisance-abatement law does require municipalities to search deed
records to ascertain the owner’s identity and to provide owners notice of pending
nuisance actions. See Tex. Loc. Gov’t Code § 214.001(q)(1). It is undisputed that
the City gave no notice of any kind to Kinnison and never searched the deed
records to find him, despite knowing that the property had a new owner.
       The City contends that the imminent-danger determination justified
proceeding without notice or process. See id. § 214.002.11 If that determination
was unreasonable, however, the City would have been required to give Kinnison
notice, and he would have had the right to administratively challenge any
threatened property deprivation. Thus, the City’s actions may be excused for
procedural due process purposes only if the imminent-danger determination was
not an abuse of discretion. See Patel, 298 F.3d at 341 (emphasizing that a
procedural due process inquiry focuses on whether the state actor’s danger
determination was reasonable, not on whether an actual danger existed).
       Turning to the record here, the City points to evidence that City employees
carried out the Ordinance in light of the City’s building-related standards and
based on evidence gathered from multiple inspections of the Property. The
employees were certified inspectors and authorized to make demolition
recommendations.12 In their view, the Property posed an “imminent danger”

       11
          Section 214.001 and its associated statutes govern, among other things, the
“demolition” of “dilapidated” and “substandard” structures that are “unfit for human
habitation and a hazard to the public health, safety, and welfare.” Tex. Loc. Gov’t Code §
214.001(a)(1). These include procedural protections such as a conjunctive list of records a
municipality must search to identify a property’s true owner, id. § 214.001(q), pre-deprivation
notice and hearing requirements, id. § 214.001(c)-(h), ordinance-content standards, id. §
214.001(b), and an express judicial-review provision. Id. § 214.0012.
       Section 214.002, however, applies “[i]f the governing body of a municipality finds that
a building . . . is likely to endanger persons or property.” Id. § 214.002(a) (emphasis added).
Unlike section 214.001—and reflecting the exigencies of summary abatement—section 214.002
contains none of the above procedural protections.
       12
          Kinnison attacks the inspectors’ credentials, but this is insufficient to create a fact
issue as to the imminent-danger determination. See Patel, 298 F.3d at 340 n.14.

                                               11
  Case: 11-50333       Document: 00511872526          Page: 12      Date Filed: 05/31/2012



                                       No. 11-50333

under the Ordinance. The appropriate officials concurred with that assessment
and determined that summary abatement was the only available method to deal
with the threat. The City therefore arguably complied with the Ordinance,13 a
fact that normally would counsel that we reverse and render judgment in the
City’s favor.14 See Traylor v. City of Amarillo, 492 F.2d 1156, 1158 (5th Cir.
1974) (noting, in nuisance abatement case, that where “the city proceeded under
authority of state law and pursuant to local ordinances which not only explicitly
define[d] the procedures to be followed, but also outline[d] with some specificity
the conditions under which property [was] subject to demolition,” the facts
presented “a far cry from . . . ad hoc, summary action”).
       We cannot do so, however, because the record contains evidence suggesting
that the City’s imminent-danger determination was an abuse of discretion. The



       13
          Kinnison argues that the two officials who ordered the demolition failed to personally
“view” the Property, making the City’s actions unreasonable per se. The Ordinance requires
that demolition occur “not later than seventy two (72) weekday hours . . . after the official
views the subject building or structure.” The officials apparently based their determinations
on inspection reports, structural assessments, photographs, and a video. Because we conclude
that a fact issue exists concerning the reasonableness of the City’s imminent-danger
determination, we do not address the consequences of the City’s potential noncompliance with
the Ordinance’s “viewing” requirement, which the district court may consider on remand.
       Kinnison also suggests that the City violated the Ordinance because it effected the
demolition more than seventy-two hours after Guajardo viewed the Property. The Ordinance,
however, uses the phrase “the official” as a term of art, limiting its reference to “the code
compliance director, the fire chief, or the director of development services.” Guajardo was not
one of these officials. Accordingly, whatever effect the 72-hour temporal limitation on
“viewing” may have, it depends on the conduct of officials other than Guajardo. As to any
defects in the Ordinance itself, Kinnison does not facially challenge the Ordinance on appeal.
       14
         The City argues that Kinnison was required to plead and prove the inadequacy of
state-law remedies in order to bring a procedural due process claim. See Parratt v. Taylor, 451
U.S. 527 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327 (1986).
Because Kinnison complains of a property deprivation effected by City employees acting with
authorization and pursuant to procedures enacted by the City, however, Parratt and its
progeny do not apply here. See Zinermon v. Burch, 494 U.S. 113, 138 (1990) (rejecting
Parratt’s application where the state actor “delegated to [its employees] the power and
authority to effect the” alleged deprivation and the “concomitant duty to initiate the [state-
law] procedural safeguards”) (internal quotation marks and citation omitted).

                                              12
  Case: 11-50333         Document: 00511872526       Page: 13     Date Filed: 05/31/2012



                                       No. 11-50333

district court’s due process ruling properly focused on the nine-day delay
between inspection and demolition. Such delays can serve as evidence of
unreasonableness if lengthy enough to call into question “the existence vel non
of an emergency.” Burtnieks v. City of New York, 716 F.2d 982, 988 (2d Cir.
1983) (three-month delay); see also Kornblum v. St. Louis Cnty., 72 F.3d 661, 664
(8th Cir. 1995) (en banc) (delay of over a year).
       Although closer to the short delays in WWBITV and Catanzaro, we cannot
hold that the nine-day delay here was brief enough to make the City’s imminent-
danger determination reasonable as a matter of law.15 Among other things, the
record suggests that the City had previously determined the Property to be an
imminent danger in 2006 for largely the same reasons justifying the 2008
demolition.16 The Property, however, was not summarily abated after the 2006
determination in part because the City informed the Property’s then-owner of
the deficiencies, and he made repairs significant enough to forestall demolition.
Kinnison, however, was not afforded the same opportunity in 2008, despite the
fact that the same structural deficiencies identified in 2006 had yet to cause the
Property’s ostensibly “imminent” collapse. The City, moreover, effected the
demolition even though Kinnison’s contractor was on-site and repairing the
Property when the demolition crew arrived. However faithfully the City adhered
to the Ordinance—an issue that may be in dispute—a reasonable factfinder
could conclude that it was an abuse of discretion to classify the Property as an
imminent danger based on long-present factors and then to summarily abate the
Property in the face of the owner’s rehabilitation efforts. Cf. Flowers, 547 U.S.



       15
            The demolitions in WWBITV and Catanzaro were effected within forty-eight hours.
       16
          In 2006, another City inspector identified the same structural defects as Guajardo
and Carrillo and determined that the Property had partially collapsed and had “the potential
of further collapse onto the neighbors [sic] premises.” Besides the then-owner’s repairs, the
record suggests that demolition was cancelled because of historical-preservation concerns.

                                             13
  Case: 11-50333        Document: 00511872526          Page: 14     Date Filed: 05/31/2012



                                        No. 11-50333

at 229-31 (faulting state actor, in adequacy-of-notice case, for not altering course
after learning that the chosen method of notice had failed; due process may
require “further reasonable steps” under the circumstances).
       On the other hand, it was undisputed that the Property was damaged.
The inspectors conducted a reasonably thorough investigation, and the City
arguably adhered to the Ordinance. A factfinder could also reasonably conclude
that these facts, among others, outweigh any evidence of procedural
unreasonableness. See Patel, 298 F.3d at 340 & n.14 (noting that, even if “a
more thorough investigation would have” dispelled the existence of a danger,
that fact generally is insufficient to make unreasonable a determination based
on evidence gathered as part of a good faith investigation). Thus, Kinnison’s
procedural due process claim should have been allowed to proceed to trial.17




       17
          Kinnison urges us to affirm based on the Texas Supreme Court’s recent decision in
City of Dallas v. Stewart, 361 S.W.3d 562 (Tex. 2012) (reh’g op.). Stewart held that, “[i]n the
context of a property owner’s appeal of an administrative nuisance determination, independent
court review is a [Texas] constitutional necessity.” Id. at 564. In Kinnison’s view, Stewart
mandates affirmance because the City failed to afford him pre-deprivation judicial review.
Kinnison also argues that Texas law requires municipalities to reaffirm nuisance
determinations on the day of demolition. See City of Houston v. Crabb, 905 S.W.2d 669 (Tex.
App.—Houston [14th Dist.] 1995, no writ).
        Section 1983, however, is concerned with federal constitutional violations, and we
examine the constitutional adequacy of state procedures under federal law. See, e.g., Traylor,
492 F.2d at 1158 (“Whatever the status of these decisions as statements of the law of Texas,
we do not believe that such a [pre-deprivation judicial review] requirement is imposed by the
federal constitutional guarantee of due process.”).
        Stewart nonetheless does lend persuasive authority to the due process analysis
deployed here. It notes that takings-style claims “typically involve mixed questions of fact and
law.” 361 S.W.3d at 578. As to the factual component, “initial questions of historical
fact—whether or not the structure had foundation damage, for example,” lie “within the
competence of the administrative agency and are accorded deference.” Id. The next step,
however, “applies those historical facts to the legal standards,” creating “questions of law that
determine the constitutionality of a property’s demolition” and that “are outside the
competence of administrative agencies.” Id. Thus, for our purposes, the presence of an
investigation does not require us to conclude that the imminent-danger determination
satisfied procedural due process as a matter of law.

                                               14
  Case: 11-50333    Document: 00511872526     Page: 15    Date Filed: 05/31/2012



                                 No. 11-50333

           C. Fourth Amendment Unreasonable Seizure Claim
      “As the text of the Fourth Amendment indicates, the ultimate measure of
the constitutionality of a government search is ‘reasonableness.’” Vernonia Sch.
Dist. 47J v. Acton, 515 U.S. 646, 652 (1995).              “[A] ‘reasonableness’
determination[] involves a balancing of all relevant factors,” Whren v. United
States, 517 U.S. 806, 817 (1996), and for Fourth Amendment purposes generally
“requires no more of government officials than that of due process of law. Both
constitutional provisions recognize an exigency exception, and, thus, lead to no
practical distinction in” the summary action context. Flatford v. City of Monroe,
17 F.3d 162, 170 (6th Cir. 1994) (citing United States v. James Daniel Good Real
Prop., 510 U.S. 43 (1993)); see also Freeman, 242 F.3d at 652 (noting that
Supreme Court precedent “forecasts, even if it does not compel, that a balancing
of the public and private interests at stake will favor the public interest in
nuisance abatement after the conclusion of adequate administrative
proceedings” (citing GM Leasing Corp. v. United States, 429 U.S. 338 (1977))).
      We see no reason to depart from the general practice of tethering the
outcome of the Fourth Amendment inquiry to whether the property deprivation
offended due process. In light of the procedural due process analysis above, we
conclude that the district court should not have granted summary judgment on
Kinnison’s Fourth Amendment claim. Cf. Samuels v. Meriwether, 94 F.3d 1163,
1168 (8th Cir. 1996) (“[A]n abatement carried out in accordance with procedural
due process is reasonable in the absence of any factors that outweigh
governmental interests.”) (citations omitted).
                                IV. Conclusion
      Because a fact issue exists as to the reasonableness of the City’s imminent-
danger determination, we VACATE the judgment below and REMAND for




                                       15
  Case: 11-50333       Document: 00511872526         Page: 16     Date Filed: 05/31/2012



                                       No. 11-50333

proceedings consistent with this opinion. We therefore need not reach the City’s
other arguments presented on appeal.18




       18
         In the event that the factfinder imposes liability on the City, the factfinder should
also determine the damages flowing from that conduct. As a result, we vacate the entirety of
the judgment such that the City’s challenges to the original damages award are now moot.

                                             16
