     Case: 11-50626   Document: 00512217844     Page: 1   Date Filed: 04/23/2013




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

                                                                   FILED
                                                                  April 23, 2013

                                 No. 11–50626                     Lyle W. Cayce
                                                                       Clerk

RBIII, L.P.,

                                           Plaintiff - Appellee
v.

CITY OF SAN ANTONIO,

                                           Defendant - Appellant



                Appeals from the United States District Court
                      for the Western District of Texas


Before DeMOSS, SOUTHWICK, and HIGGINSON, Circuit Judges.
DeMOSS, Circuit Judge:
      This appeal arises from a dispute between the City of San Antonio (the
“City”) and RBIII, L.P. (“RBIII”). On January 10, 2008, the City demolished a
dilapidated building (the “Structure”) located at 814 South Nueces Street (the
“Property”) in San Antonio, Texas. It is undisputed that the City did not provide
notice to RBIII, the owner of the Property, before razing the Structure. RBIII
filed suit against the City, asserting a host of state and federal claims. The
district court granted summary judgment for the City on all claims except a
Fourteenth Amendment procedural due process claim and a Fourth Amendment
unreasonable search and seizure claim. Those claims were tried to a jury, which
returned a verdict in favor of RBIII. The City appeals.
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                                 No. 11-50626

                                       I.
                                      A.
      On December 27, 2007, Irma Ybarra, a code enforcement officer of the
City, drove by the Property in response to a neighbor’s complaint that the
Structure was unsecured and dilapidated. Ybarra conducted a more thorough
inspection on December 28, 2007. She found that, in addition to being vacant
and unsecured, the Structure smelled of mold and exhibited fire and water
damage, including holes in the ceilings, walls, and floors. Ybarra also found
evidence of unauthorized people coming and going from the Structure, including
trash, graffiti, missing fixtures, and an unhinged gate.
      Based on her inspection, Ybarra determined that the Structure had
become a harbor for unauthorized persons, was in danger of collapsing, and was
too unstable to attempt to secure.    She requested that a building inspector
review the Structure. Ramiro Carillo, a certified building inspector working for
the City, examined the Structure on December 28, the same day Ybarra
conducted her inspection. He concluded that the foundation, walls, and roof
components were in extremely poor condition and that the Structure constituted
an “imminent threat to life, safety, and/or property, requiring immediate
demolition.”   He also concluded that “no other abatement procedure was
reasonably available under the circumstances.”
      Carillo presented his report and photographs of the Structure to Roderick
Sanchez, the director of the City’s Planning and Development Services
Department, and recommended the Structure for emergency demolition. After
reviewing the report and photographs, Sanchez concurred in Carillo’s
recommendation.      David Garza, the director of the City’s Housing and


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                                      No. 11-50626

Neighborhood Services Department, also concurred in the recommendation after
reviewing photographs of the Structure and conferring with a member of his
staff who had visited the Property. On January 3, 2008, Carillo and Garza each
signed affidavits stating that it was his determination that the Structure
“presented a clear and imminent threat to life, safety, and/or property
necessitating an immediate demolition” and that “no other abatement procedure
was reasonably available under these circumstances.” Carillo and Garza re-
executed identical affidavits on January 7, 2008.
       Ybarra obtained an environmental survey from the City’s Environmental
Services Department and also notified the City’s Historic Preservation Office of
the planned demolition. She arranged to have the gas and electricity service
cut-off. She also searched the City’s permit records and determined that no
permits had been obtained to repair the Structure. She revisited the Property
on January 9, 2008 to confirm that no repair work had been done. The Structure
was demolished on January 10, 2008.1 The next day, the City sent a notice to
RBIII informing it that the City had demolished the Structure as an “Emergency
Case.” It is undisputed that the City did not provide notice to RBIII of the
pending demolition of the Structure at any time between December 28 and
January 10.




       1
        The City presented evidence that the reason thirteen days passed between the initial
inspection and the demolition was that the City needed to ensure that the demolition could
proceed safely while operating with only a “skeleton crew” during the holiday season. RBIII
questioned the City’s explanation and suggested that the City could have demolished the
Structure sooner, but did not argue that the City delayed the demolition intentionally or in
bad faith.

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                                             B.
       RBIII filed suit against the City and Ibarra’s supervisor, Reyes
Hernandez, in the 228th Judicial District Court of Bexar County on January 28,
2009 alleging claims under local, state, and federal law.2 The City filed a notice
of removal to federal court. The district court granted summary judgment in
favor of Hernandez on all of RBIII’s claims. The district court granted summary
judgment in favor of the City on all claims except for two: (1) that the City
violated RBIII’s Fourteenth Amendment right to procedural due process by
demolishing the Structure without providing notice, and (2) that the City
unreasonably seized the Structure in violation of the Fourth Amendment.
       The court also held at the summary judgment stage that the City had
complied with San Antonio Code of Ordinances § 6-175 (the “Ordinance”), which
governed summary demolitions. The Ordinance, which has since been repealed,
provided that the City could demolish dangerous structures without prior notice
to the owner when “due to one or more structural conditions threatening the
structural integrity of a building, there is a clear and imminent danger to the
life, safety or property of any person.”           Two of three designated officials,
including the Director of Development Services, had to concur in the
determination that the building posed an imminent threat. The Ordinance also
required that the two officials find that “no other abatement procedure is
reasonably available except demolition.” The demolition had to occur within 72
hours of when an official viewed the building and the owner of the building had

       2
         RBIII brought its federal constitutional claims pursuant to 42 U.S.C. § 1983, but the
City has not raised a defense based on Monell v. Department of Social Services of the City of
New York, 436 U.S. 658 (1978) in its appellate briefing. For the reasons set forth in Kinnison
v. City of San Antonio, 480 F. App’x 271, 274-76 (5th Cir. 2012), we hold that the City has
waived any Monell defense with respect to this appeal.

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                                         No. 11-50626

to be notified after the demolition.3
                                              C.
      The district court held a jury trial on RBIII’s Fourth and Fourteenth
Amendment claims from March 28 to March 30, 2011. The jury found in favor
of RBIII on both claims and awarded $27,500 in damages. On appeal, the City
argues, among other things, that the district court’s jury instructions did not
accurately reflect the applicable law and that, under the correct legal standards,
it was entitled to judgment as a matter of law.
                                              II.
                                              A.
      While the Fourteenth Amendment’s Due Process Clause generally requires
that the State provide an opportunity to be heard before it takes property,
predeprivation notice is not always required. Gilbert v. Homar, 520 U.S. 924,
930 (1997). In particular, where the State acts to abate an emergent threat to
public safety, postdeprivation process satisfies the Constitution’s procedural due
process requirement. See Hodel v. Va. Surface Mining & Reclamation Ass’n,
Inc., 452 U.S. 264, 301-03 (1981); see also Gilbert, 520 U.S. at 930 (“[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.”).           Determining whether a pre-notice deprivation of
property comports with procedural due process therefore requires an evaluation
of (1) the State’s determination that there existed an emergency situation
necessitating quick action and (2) the adequacy of postdeprivation process.
Elsmere Park Club, L.P. v. Town of Elsmere, 542 F.3d 412, 417-420 (3d Cir.


      3
          For the full text of the Ordinance, see Kinnison, 480 F. App’x at 272-73.

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2008); Catanzaro v. Weiden, 188 F.3d 56, 61-62 (2d Cir. 1999).
       How the fact-finder approaches the first issue depends on whether the
State acted pursuant to a valid summary-action ordinance. If it did, then the
State’s determination that it was faced with an emergency requiring a summary
abatement is entitled to deference. Catanzaro, 188 F.3d at 62-63; see also
Kinnison v. City of San Antonio, 480 F. App’x 271, 277 (5th Cir. 2012); Elsmere
Park Club, 542 F.3d at 418. 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. See Patel v. Midland Mem. Hosp. & Med. Ctr., 298
F.3d 333, 341 (5th Cir. 2002) (holding that the “key question” in a pre-notice
deprivation case is not whether there “was actually a danger” but whether the
State had reasonable grounds for believing that a danger existed requiring
summary action); Elsmere Park Club, 542 F.3d at 416, 420 (holding that district
court erred in finding procedural due process violation solely on the basis that
“the Town failed to present sufficient evidence of exigent circumstances”
(internal quotation marks omitted)). This deference derives from the concern
that “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, [would] encourage delay and thereby potentially
increase the public’s exposure to dangerous conditions.” Catanzaro, 188 F.3d at
63.
       With respect to the second issue—the adequacy of postdeprivation
process—RBIII has not pled or otherwise argued that the postdeprivation




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                                         No. 11-50626

remedies available to it were procedurally inadequate.4 While RBIII’s failure to
do so is not fatal to its procedural due process claim,5 it does limit that claim to
an attack on the City’s determination that the Structure presented a public
emergency requiring summary abatement. See Catanzaro, 188 F.3d at 64.
                                               B.
       The Fourth Amendment requires that any seizure of property by the State
be reasonable. New Jersey v. T.L.O., 469 U.S. 325, 340 (1985) (“The fundamental
command of the Fourth Amendment is that searches and seizures be reasonable
. . . .”). “[T]he Fourth Amendment reasonableness of a seizure and demolition
of nuisance property will ordinarily be established when the substantive and
procedural safeguards inherent in state and municipal property standards


       4
          At trial, neither party presented evidence on the issue of postdeprivation remedies.
 In its brief on appeal, RBIII argues that although it pled all available state and local remedies
in its original complaint, the district court granted summary judgment in favor of the City on
those claims. RBIII also argues that it could not sue the City for inverse condemnation
because the district court held that the Structure was a nuisance and granted summary
judgment to the City on RBIII’s takings claims. Nowhere, however, does RBIII claim that its
postdeprivation remedies were procedurally inadequate. In particular, even if RBIII is correct
that it would have lost an inverse condemnation suit due to the district court’s nuisance
finding, RBIII does not explain why it follows that inverse condemnation is a procedurally
inadequate postdeprivation remedy. The Due Process Clause entitles RBIII to an opportunity
to heard, not a successful outcome.
       5
         As the panel in Kinnison correctly noted, where a plaintiff “complains of a property
deprivation effected by City employees acting with authorization and pursuant to procedures
enacted by the City,” there is no requirement “to plead and prove the inadequacy of state-law
remedies in order to bring a procedural due process claim.” 480 F. App’x at 279 n.14; see also
Zinermon v. Burch, 494 U.S. 113, 117, 138-39 (1990) (holding that plaintiff was not required
to plead inadequate postdeprivation remedies where complained of conduct by public officials
was not “random and unauthorized” but undertaken pursuant to statutorily delegated
authority); Mitchell v. Fankhauser, 375 F.3d 477, 483-84 (6th Cir. 2004) (holding that where
plaintiff was deprived of property pursuant to established state procedures and not by the
random or unauthorized acts of state officials, plaintiff was not required to plead inadequate
postdeprivation remedies in order to bring a procedural due process claim).

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                                   No. 11-50626

ordinances have been fulfilled.” Freeman v. City of Dallas, 242 F.3d 642, 654
n.17 (5th Cir. 2001) (en banc). Because the Fourth Amendment generally
requires no more than due process of law in summary abatement cases, the
outcome of a Fourth Amendment claim depends on whether the seizure complied
with due process. See Flatford v. City of Monroe, 17 F.3d 162, 170 (6th Cir. 1994)
(citing Soldal v. Cook Cnty., Ill., 506 U.S. 56, 71 (1992)); see also Kinnison, 480
F. App’x at 281 (finding “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”).
                                       III.
                                        A.
      On appeal, the City argues that the district court provided erroneous
instructions to the jury. With respect to the due process claim, the instructions
read in relevant part:
      Under the Fourteenth Amendment’s Procedural Due Process
      Clause, a property owner is entitled to notice and/or a hearing
      before being deprived of its property. In this case, the parties do not
      dispute that the City did not provide notice to RBIII before
      demolition.

      In some cases, property may be seized without providing prior
      notice. The emergency situations in which it is considered
      reasonable to proceed without giving prior notice are generally
      limited to situations in which there is an immediate danger to
      public. You must consider all the facts presented to you in order to
      determine whether the circumstances in the instant case excused
      the City from providing notice to RBIII before demolishing the
      property.




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The court’s instructions on the Fourth Amendment claim, in relevant part, read
as follows:
      Assessing the reasonableness of the seizure involves a careful
      balancing of the nature and quality of the intrusion on the
      individual’s Fourth Amendment interests against the countervailing
      governmental interest at stake. It entails weighing a number of
      factors, including the danger posed by a building to public safety.
      The private interests at stake include the right to personal property.
      Here, the City argues that the immediate demolition of RBIII’s
      property was necessary and reasonable due to the condition of the
      structure. Considering all facts presented to you, you must weigh
      the public and private interests at stake, and determine whether
      RBIII has proved by a preponderance of the evidence that the City’s
      destruction of the property was unreasonable.

The City argues, as it did in the district court, that the jury charge should have
stated that the City’s decision to invoke its emergency powers under the
Ordinance was entitled to deference and that the City’s compliance with the
Ordinance was proof of the reasonableness of its actions.
                                       B.
      “We review jury instructions for an abuse of discretion.” Carrizales v.
State Farm Lloyds, 518 F.3d 343, 348 (5th Cir. 2008). To establish error, the
City must show that “the instruction as a whole ‘creates substantial doubt as to
whether the jury was properly guided.’” Id. (quoting Green v. Adm’rs of Tulane
Educ. Fund, 284 F.3d 642, 659 (5th Cir. 2002)); see also Smith v. Xerox Corp.,
602 F.3d 320, 325 (5th Cir. 2010) (“In reviewing the jury charge we ask whether
the jury charge properly stated the applicable law and, if not, whether the
challenged instruction affected the outcome of the case.”).




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                                        No. 11-50626

                                              C.
           RBIII’s procedural due process claim did not challenge the Ordinance
itself, but rather the City’s application of the Ordinance to the particular
circumstances of this case.6 Because the City acted pursuant to the Ordinance,
its decision to demolish the Structure on an emergency basis was entitled to
deference and did not violate RBIII’s right to procedural due process unless it
was arbitrary or an abuse of discretion. See Catanzaro, 188 F.3d at 62 (holding
that where plaintiff does not challenge the validity of emergency demolition
procedure, “there is no constitutional violation unless the decision to invoke the
emergency procedure amounts to an abuse of the constitutionally afforded
discretion”); see also Kinnison, 480 F. App’x at 278 (holding that demolition
without notice “may be excused for procedural due process purposes only if the
imminent-danger determination was not an abuse of discretion”); WWBITV, Inc.
v. Village of Rouses Point, 589 F.3d 46, 51 (2d Cir. 2009) (“[W]here an adequate
post-deprivation process exists, an official reasonably believing on the basis of
competent evidence that there is an emergency does not effect a constitutional
violation by ordering a building demolition without notice or a hearing.”);
Elsmere Park Club, 542 F.3d at 418 (“Thus, in analyzing the Town’s decision to
condemn summarily the apartments, we look to whether there was competent


       6
         RBIII did argue in the district court that the ordinance was “unconstitutionally
vague,” but only in connection with its equal protection and substantive due process claims.
Because the City repealed the Ordinance after RBIII filed suit, the district court dismissed
RBIII’s vagueness claim as moot. RBIII did not thereafter seek a ruling from the district court
on the constitutionality of the Ordinance and it has not cross-appealed the district court’s
order dismissing its vagueness claim. Given those circumstances, we have no hesitation in
following the approach of the Kinnison panel, which, faced with substantially the same facts,
held that the plaintiff’s procedural due process claim “challenged only the manner in which
the City applied the Ordinance in his specific case.” See Kinnison, 480 F. App’x at 277 & n.9.

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                                   No. 11-50626

evidence supporting the reasonable belief that the mold situation presented an
emergency, and to whether the Town’s actions were otherwise arbitrary or an
abuse of discretion.” (internal quotation marks omitted)).
      The district court, however, instructed the jury that the City was excused
from providing notice to RBIII only if there was “an immediate danger to the
public,” making no mention of the City’s compliance with the Ordinance or the
discretion resulting therefrom. By doing so, the court improperly cast the
central factual dispute as whether or not the Structure posed an immediate
danger to the public, when the issue should have been whether the City acted
arbitrarily or abused its discretion in determining that the Structure presented
an immediate danger. See Patel, 298 F.3d at 341; see also WWBITV, Inc., 589
F.3d at 51 (“Whether the official abused his discretion or acted arbitrarily in
concluding that a genuine emergency exists is a factual issue . . . .”). Because
this error in the instructions misled the jury as to the central factual question
in the case, we must vacate the district court’s judgment on RBIII’s due process
claim and remand for further proceedings. See Septimus v. Univ. of Houston,
399 F.3d 601, 608 (5th Cir. 2005) (vacating verdict where erroneous instructions
misled the jury as to “the ultimate question in the case”); see also Carrizales, 518
F.3d at 351 (remanding for new trial where district court erroneously instructed
jury on factual finding necessary for liability).
      This error in the jury instructions affected not only RBIII’s due process
claim, but also its Fourth Amendment claim. While the instructions on the
Fourth Amendment claim properly focused on the reasonableness of the City’s
decision to demolish the Structure without notice, the court’s instruction on the
due process claim would have led the jury to believe that such a decision can


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                                  No. 11-50626

only be reasonable when there is actually “an immediate danger to public.” As
such, the instructions (1) improperly shifted the jury’s focus from the
reasonableness of the City’s determination that the Structure posed a public
emergency to the accuracy of that determination, cf. Freeman, 242 F.3d at 654
(holding that in a summary abatement case “Fourth Amendment reasonableness
means non-arbitrariness”), and (2) failed to inform the jury that the City’s
compliance with the Ordinance was relevant to the question of the
reasonableness of the City’s actions, see id. at 653 (holding that the “ultimate
test of reasonableness” was met by “the City’s adherence to its ordinances and
procedures” prior to abatement); see also id. at 654 n.18 (“[A] showing of
unreasonableness in the face of the City’s adherence to its ordinance is a
‘laborious task indeed.’” (quoting Soldal, 506 U.S. at 71)).
      The incorrect instruction on the due process claim further implicated the
jury’s consideration of RBIII’s Fourth Amendment claim because “an abatement
carried out in accordance with procedural due process is reasonable in the
absence of any factors that outweigh governmental interests.” Samuels v.
Meriwether, 94 F.3d 1163, 1168 (8th Cir. 1996). Indeed, factors favoring the
plaintiff will generally not outweigh the government’s interest when it effects a
procedurally adequate summary deprivation. Freeman, 242 F.3d at 652; see also
Kinnison, 480 F. App’x at 280-281 (“A reasonableness determination involves a
balancing of all relevant factors, 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.” (internal alterations,
citations and question marks omitted)).          Because the due process jury


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instructions gave the erroneous impression that the reasonableness
determination depended entirely on whether an emergency actually existed and
because the result of the due process inquiry affects the outcome of the Fourth
Amendment claim, we must vacate the district court’s judgment on RBIII’s
Fourth Amendment claim as well.
                                       IV.
      The City argues that, when viewed against the proper standards for
Fourth and Fourteenth Amendment liability, the evidence presented at trial
entitled it to judgment as a matter of law. It is apparent from the erroneous jury
instructions, however, that the district court misapprehended the factors
governing the outcome of the claims at issue when it ruled on the City’s motion
for judgment as a matter of law. Given the district court’s greater familiarity
with the factual record in this case, we find it appropriate to remand the case for
reconsideration of the City’s motion for judgment as a matter of law not
inconsistent with this opinion and for further proceedings as necessary. See, e.g.,
Olin Corp. v. Certain Underwriters at Lloyd’s London, 468 F.3d 120, 131-32 (2d
Cir. 2006) (vacating judgment due to erroneous jury instructions and remanding
for reconsideration of motion for judgment as a matter of law). Because we
vacate the trial court’s judgment against the City, we need not consider the other
issues raised in the City’s appeal. See Septimus, 399 F.3d at 612.


VACATED AND REMANDED




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