                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-1053


CHARLES EDWARD RICHTER,

                Plaintiff - Appellant,

          v.

J. BEATTY, Deputy Sheriff Queen Anne’s County,

                Defendant – Appellee,

          and

STATE OF MARYLAND; CHARLES F. CROSSLY, JR.,

                Defendants.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Richard D. Bennett, District Judge.
(1:07-cv-02707-RDB)


Submitted:   February 15, 2011              Decided:   March 17, 2011


Before MOTZ, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Robin R. Cockey, COCKEY, BRENNAN & MALONEY, PC, Salisbury,
Maryland, for Appellant.    Daniel Karp, KARPINSKI, COLARESI &
KARP, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Charles Richter appeals the district court’s judgment,

entered after a jury trial, in favor of James Beatty.                    Richter

claims error in three respects:           (1) the district court erred in

granting summary judgment on his procedural due process claim;

(2)   the   court   erred   in    granting       summary     judgment    on     his

substantive   due   process      claim;    and   (3)   the    court     erred   in

revisiting the issue of qualified immunity after the close of

his case-in-chief.    For the reasons that follow, we affirm.

            On October 8, 2004, Richter, a retired police officer,

decorated his 1988 Chevrolet Beretta (“Beretta”) with swastikas

and the words “Vote for Pipkin.”           He then parked the car on Pier

One Road in Queen Anne’s County, Maryland, at a location popular

with local politicians for campaigning.                The words written on

the vehicle referred to state Senator E.J. Pipkin, whom Richter

opposed.    Richter also taped a letter to then-Maryland Governor

Robert Erlich to the inside of the Beretta’s window, claiming

that the local police force refused to enforce the laws, and

that Pipkin had promised him aid and then refused to assist him.

The car was legally parked and in operable condition.

            Beatty, a Sherriff’s deputy, tagged the vehicle with a

repair order and noted that it would be towed in forty-eight

hours if not moved.     Although Richter surreptitiously moved the

vehicle during the forty-eight hour period, he always returned

                                      2
it to its original parking space.                      Ultimately, Beatty had the

vehicle towed, and Richter refused to pay the $100 towing fee

for the vehicle’s return.                The Beretta was eventually destroyed

and the underlying suit followed.                    Richter alleged violations of

his First Amendment rights, his substantive and procedural due

process       rights,       and      sought     injunctive      relief      and    punitive

damages.        The district court granted summary judgment in favor

of Beatty on Richter’s due process claims, but concluded that

Beatty    was       not    entitled     to    good   faith     qualified      immunity       on

Richter’s First Amendment retaliation claim, and denied summary

judgment.          The case proceeded to trial.

               At trial, Richter chose only to call two witnesses

during       his    case-in-chief:        himself      and    Beatty       (who   was   only

called to authenticate certain documents).                           Richter’s decision

was purportedly a strategic one: he and his attorney believed

that    it    would       not   be   advantageous      to     call    hostile     witnesses

during the case-in-chief, and chose instead to develop their

case through cross-examination of defense witnesses.                              After the

close    of    the        case-in-chief,      Beatty    moved        for   judgment     as    a

matter    of       law.      The     district    court,      after    hearing     argument,




                                                3
denied   the   motion,      but   chose   to    revisit    the     question    of

qualified immunity. *

          The court stated that it would allow the case to go to

a jury, though, to allow the jury to determine whether Richter

had satisfied the factual predicate for his claim.                 If the jury

ruled in Richter’s favor, the court would then determine, as a

matter of law, that Beatty was entitled to qualified immunity

and would strike the jury’s verdict.                 Richter objected to the

court’s approach, arguing that disclosing how the court would

rule post-verdict would alter Beatty’s manner of presentation of

evidence, and possibly deprive Richter of the chance to cross-

examine defense witnesses and develop his case.                  Beatty elected

not to present any evidence, and the jury ruled in his favor.

This timely appeal followed.



                      I.     Procedural Due Process

          Richter first claims that the district court erred in

concluding     that   his     procedural       due    process     rights      were

satisfied.     The gravamen of his claim is that by towing and

destroying his Beretta, he was deprived of a property interest


     *
       During the summary judgment stage, this case was presided
over by then-District Judge André Davis.    When Judge Davis was
elevated to this court, he was replaced on this case by Judge
Richard D. Bennett, who presided over the trial.



                                      4
without either a pre-deprivation or a post-deprivation remedy

that would satisfy Fourteenth Amendment scrutiny.

              This court reviews de novo a district court’s order

granting summary judgment and views the facts in the light most

favorable to the nonmoving party.               Rowzie v. Allstate Ins. Co.,

556    F.3d    165,     167    (4th Cir. 2009).           Summary   judgment       is

appropriate when no genuine issue of material fact exists and

the moving party “is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(c)(2).               Summary judgment will be granted

unless    “a    reasonable      jury   could     return    a    verdict   for     the

nonmoving party” on the evidence presented.                   Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986).

              To establish a violation of procedural due process,

Richter must show that (1) he had a property interest (2) of

which the defendant deprived him, (3) without due process of

law.     Sunrise Corp. of Myrtle Beach v. City of Myrtle Beach, 420

F.3d   322,     328    (4th Cir. 2005)        (citing   Sylvia    Dev.    Corp.    v.

Calvert       Cnty.,    Md.,    48     F.3d     810,    826     (4th Cir. 1995)).

Procedural due process requires, at a minimum, fair notice and

an opportunity to be heard.             Mathews v. Eldridge, 424 U.S. 319,

333 (1976).       In order to determine whether an individual has

received fair notice, we “must examine the relevant facts of

each case.”       United States v. Hoechst Celanese Corp., 128 F.3d

216, 224 (4th Cir. 1997).              Beyond the minimum requirements of

                                         5
notice and an opportunity to be heard, due process is “flexible

and   calls    for   such   procedural       protections     as    the     particular

situation     demands.”      Morrissey       v.   Brewer,    408    U.S.    471,   481

(1972).

              Here, it is clear that Richter had a property interest

in his vehicle.       Although the district court assumed that Beatty

had   deprived    Richter   of   his    interest     in     the    vehicle,   Beatty

argues on appeal that there is no evidence that Beatty ordered

the car towed or destroyed.            Because Richter has not shown that

he was deprived of due process, we do not reach the issue of

whether Beatty was responsible for the towing and subsequent

destruction of the Beretta.

              After review of the record, we conclude that Richter

was not deprived of procedural due process.                        Indeed, Richter

could have availed himself of the court system to prevent the

destruction of the Beretta.        Moreover, he could have simply paid

the fine and then challenged the fine’s validity.                        Finally, it

appears from the record that police officers attempted to return

the Beretta to Richter or waive the towing fee, and Richter

refused, asserting that he was entitled to a day in court.                         In

light of this record, we cannot conclude that Richter was denied

procedural due process.




                                         6
                             II.    Substantive Due Process

               The government runs afoul of substantive due process

only     when    its        actions          shock       the    conscience.           Cnty.     of

Sacramento v. Lewis, 523 U.S. 833, 845-47 (1998); Young v. City

of Mount Ranier, 238 F.3d 567, 574 (4th Cir. 2001).                                   In other

words, the protections of substantive due process extend only to

“state action so arbitrary and irrational, so unjustified by any

circumstance          or    governmental               interest,    as    to    be    literally

incapable       of         avoidance         by        any     predeprivation        procedural

protections or of adequate rectification by any post-deprivation

state remedies.”              Rucker v. Harford Cnty., 946 F.2d 278, 281

(4th Cir. 1991).             To shock the conscience, “the conduct must be

‘intended to injure in some way unjustifiable by any government

interest.’”                Hawkins        v.       Freeman,        195     F.3d      732,      742

(4th Cir. 1999) (en banc) (quoting Lewis, 523 U.S. at 849).

               We have reviewed the record, and we agree with the

district       court’s       conclusion            that       Beatty’s    actions       did    not

violate     Richter’s         substantive               due    process    rights.         First,

Richter had post-deprivation procedures available to remedy the

towing    of     his       vehicle.           Accordingly,         the    actions     were     not

“literally      incapable          of    .     .   .    adequate    rectification        by    any

post-deprivation            state       remedies.”             Rucker,   946   F.2d     at    281.

Moreover,       the    towing       of    Richter’s           Beretta    was   simply    not    so

unjust that no amount of fair procedure could rectify it.                                       We

                                                   7
therefore       decline     to    disturb       the       district    court’s        grant    of

summary judgment on Richter’s substantive due process claims.



                       III. Unfair Prejudice at Trial

               Finally,     Richter        argues         that     the     district       court

unfairly prejudiced him by readdressing the issue of qualified

immunity at trial.              In so doing, Richter argues, the district

court altered the manner in which Beatty would present evidence

and prevented him from developing his case by way of cross-

examining       Beatty’s        witnesses.           Richter       does     not    appear    to

dispute the district court’s legal conclusions with respect to

Beatty’s       qualified    immunity       claim;         merely     the    timing     of    the

court’s    decision        to    announce       that       Beatty    would        receive    the

benefit of qualified immunity.

               We agree with the parties that the appropriate level

of review is for abuse of discretion.                            We conclude, however,

that     the    district        court     did       not    abuse     its     discretion      in

revisiting the question of qualified immunity.                             First, the court

noted that since the summary judgment phase, there had been a

change    in    the   law   that        arguably      affected       whether       good   faith

qualified immunity was applicable. See Pearson v. Callahan, 129

S. Ct. 808 (2009).               Regarding the timing of the decision, our

review of the record reveals no abuse of discretion.



                                                8
            Accordingly, we affirm the judgment of the district

court.     We dispense with oral argument because the facts and

legal    contentions   are   adequately   presented    in   the    materials

before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                    AFFIRMED




                                    9
