                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 06-1235


DIANE L. NIXON; WILLIAM CLYDE LASSELL,

                                               Plaintiffs - Appellants,

           versus

MONTGOMERY COUNTY, MARYLAND; LINDA BIRD, a
Montgomery County resident, Supervisor, Code
Enforcement Section; KEVIN M. MARTELL,

                                                Defendants - Appellees.


Appeal from the United States District Court for the District of
Maryland, at Greenbelt.     Peter J. Messitte, District Judge.
(8:04-cv-03556-PJM)


Argued:   September 25, 2007                 Decided:   October 12, 2007


Before MICHAEL and MOTZ, Circuit Judges, and Joseph F.
ANDERSON, Jr., United States District Judge for the District of
South Carolina, sitting by designation.


Affirmed in part and reversed in part by unpublished per curiam
opinion.


ARGUED: David W. Brown, KNOPF & BROWN, Rockville, Maryland, for
Appellants. Sharon Veronica Burrell, Associate County Attorney,
COUNTY ATTORNEY’S OFFICE FOR THE COUNTY OF MONTGOMERY, Rockville,
Maryland, for Appellees.    ON BRIEF: Charles W. Thompson, Jr.,
County Attorney, Marc P. Hansen, Deputy County Attorney, Patricia
P. Via, Principal Counsel for Litigation, COUNTY ATTORNEY’S OFFICE
FOR THE COUNTY OF MONTGOMERY, Rockville, Maryland, for Appellees.


Unpublished opinions are not binding precedent in this circuit.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

        Diane   Nixon   and   her   husband,     William     Clyde    Lassell,

(collectively     “Nixon”)    contend    that   Montgomery   County    Housing

officials violated constitutional rights and committed intentional

torts when they entered Nixon’s property, ostensibly to remove

weeds and other debris as authorized by the County Housing Code.

The district court granted summary judgment to all defendants,

concluding that the possible negligence of County officials did not

rise to the level of either a constitutional violation or an

intentional deprivation of property. We affirm in part and reverse

in part.



                                        I.

     On October 25, 2001, the Montgomery County Department of

Housing and Community Affairs received a complaint concerning the

property of Diane Nixon at 708 Ludlow Street, Silver Spring,

Maryland. Kevin Martell, a housing code inspector, visited Nixon’s

property and determined that it was in violation of the County

Code.

     Martell sent a notice to Nixon dated October 25, 2001, by

certified mail, return receipt requested, stating that her property

was in violation of Chapter 58 of the Housing Code, which prohibits

“weeds and generalized growth to exceed 12 inches in height limit

in a subdivision.”       The notice complied with Chapter 58 in all


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respects:    it     offered    Nixon      a    10-day   waiting      period,   the

opportunity to appeal the notice, and the telephone numbers for the

Board of Appeals and for Martell.          But the notice warned that on or

after November 5, 2001, the County would enter the property for the

purpose of bringing it into compliance with the Housing Code, with

Nixon responsible for the attending costs. The record includes the

return receipt, bearing the signature of Lassell (Nixon’s husband),

stamped October 26, 2001.

     After receiving the letter, Nixon failed to appeal.                 Instead,

she maintains that she began cleaning her property, hiring local

youths to assist her.         Nonetheless, early on November 7, 2001,

Martell and a work crew arrived at Nixon’s property, entered it

through a chain link gate that they removed from its hinges, and

proceeded to clean up the property.

     Martell claims that the property was still in violation of the

Housing Code when he arrived on November 7, and that, in cleaning

the property, he cut back and removed dead vegetation, vines,

overgrown bamboo, logs of wood, and dead, dying, or leaning trees.

He   acknowledges    that     he   also       removed   a   picnic    table    and

wheelbarrow, but maintains that these items were unusable and

constituted trash.     In contrast, Nixon claims that the yard had

been sufficiently cleared of overgrowth by November 7 to be within

the Housing Code, and that Martell actually destroyed healthy




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trees, ornamental shrubs, and plants with an estimated value of

$17,362.

     On November 5, 2004, Nixon filed this action against Martell,

his supervisor, Linda Bird, and the County, alleging violations of

Nixon’s constitutional rights to due process and freedom from

unreasonable search and seizures under both the federal and state

constitutions.*   Nixon also alleged state tort claims for trespass

and conversion. The district court granted summary judgment to all

defendants on all claims.



                                 II.

     The Due Process Clause guarantees that “[n]o person shall

. . . be deprived of life, liberty, or property, without due

process of the law.”     The Supreme Court has repeatedly affirmed

“the general rule that individuals must receive notice and an

opportunity to be heard before the Government deprives them of

property.”   United States v. James Daniel Good Real Property, 510

U.S. 43, 48 (1993).    Nixon raises two due process challenges.

     She initially claims that the County’s notice failed to

identify the legal basis for all of the items that were removed.

Nixon notes that Chapter 58 of the Housing Code addresses only

weeds and generalized plant growth over 12 inches in height.      A


     *The parties agree that the state claims alleging violations
of the Maryland Constitution effectively rise or fall with the
federal claims. Therefore, we will not address them separately.

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separate section of the Housing Code, Chapter 48, addresses solid

waste matter, like the picnic table, wheelbarrow, and dead trees.

For this reason, Nixon claims the notice was deficient.

     In Mathews v. Eldridge, 424 U.S. 319, 335 (1976), the Supreme

Court    held    that     a    court    should    determine   the   adequacy    of

predeprivation process by balancing three factors:

     First, the private interest that will be affected by the
     official action; second, the risk of an erroneous
     deprivation of such interest through the procedures used,
     and the probable value, if any, of additional or
     substitute procedural safeguards; and finally, the
     Government’s interest, including the function involved
     and the fiscal and administrative burdens that the
     additional or substitute procedural requirement would
     entail.

     Applying these factors, we can only conclude that the County

provided constitutionally adequate process to Nixon concerning the

removal of the items covered by Chapter 58 and those covered by

Chapter 48.      The removal of solid waste items, covered by Chapter

48, appears closely related to the clean-up of the Chapter 58

items.    Although lacking specificity, the notice clearly presented

the County’s general concerns, indicated the County’s proposed

solution, and provided Nixon with a means to appeal if she so

chose.

        Nixon, however, also claims that the County exceeded its

legitimate authority under any section of the Housing Code by

destroying      healthy       trees    and   a   functional   picnic   table   and

wheelbarrow.     Although little record evidence beyond the testimony


                                             5
of Nixon and her husband supports such a claim, we must construe

the facts in the light most favorable to Nixon.                     Yet, even taking

these facts as a given, Nixon does not present a viable due process

claim because Maryland provides postdeprivation process that offers

Nixon sufficient redress for her alleged property loss.

     When a deprivation of property occurs through the “random and

unauthorized acts” of a government employee, then the Constitution

requires only adequate postdeprivation process.                     See Zinermon v.

Burch, 494 U.S. 113, 128 (1990).                     In the present case, even

assuming that Martell and his work crew destroyed healthy trees and

a functional wheelbarrow and picnic table, the alleged destruction

did not occur as the result of established state procedures, but

rather through the “random and unauthorized acts” of government

employees.

     Maryland        presents      Nixon       with       an   entirely       adequate

postdeprivation       remedy     for    any     unauthorized        acts     by    local

government employees, like Martell and his work crew.                        The Local

Government Tort Claims Act provides that “local government shall be

liable for any judgment against its employee for damages resulting

from tortious acts or omissions committed by the employee within

the scope of employment with the local government.”                          Md. Code.

Ann., Cts. & Jud. Proc., § 5-303(b)(1). When liability attaches

under   the   Act,    the    local     government         forgoes   governmental      or

sovereign     immunity      in   exchange      for    a    $200,000    cap    on    each


                                           6
individual claim and a $500,000 cap on the total claim, as well as

freedom from punitive damages.         § 5-303(a)-(c).   If a local

government employee has acted with actual malice when committing

such tortious acts, then the judgment may be executed against the

employee and the local government may seek indemnification for any

sums it is required to pay.   § 5-302(b)(2).

     For these reasons, Nixon’s due process claims fail.



                                III.

     The Fourth Amendment, made applicable to the states by the

Fourteenth, provides in pertinent part that the “right of the

people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be violated

. . . ”     A “seizure” of property occurs when “there is some

meaningful interference with an individual’s possessory interests

in that property.”   United States v. Jacobsen, 466 U.S. 109, 113

(1984).   Moreover, the Fourth Amendment's protections apply in the

civil as well as the criminal context, and seizures of property are

subject to Fourth Amendment scrutiny regardless of whether a

“search” has taken place.   Soldal v. Cook County, 506 U.S. 56, 67

(1992).

     In Camara v. Municipal Court, 387 U.S. 523 (1967), the Supreme

Court held that administrative searches by health and housing

officials constituted significant intrusions on Fourth Amendment


                                 7
interests, and that such searches, when authorized and conducted

without a warrant procedure, lacked the traditional safeguards

guaranteed      by    the       Fourth   Amendment.       Yet,   as    the    Court    has

repeatedly reaffirmed, often through explicit reference to Camara,

“reasonableness,” rather than a warrant, “is still the ultimate

standard under the Fourth Amendment,” and its determination will

reflect     a    “careful         balancing       of    governmental     and    private

interests.”       Soldal, 506 U.S. at 549 (internal quotation marks

omitted).       Consequently, as a number of our sister circuits have

held,     procedural            due   process     guarantees     can,    in     certain

circumstances,            satisfy     the   Fourth       Amendment     reasonableness

requirement.         See Santana v. City of Tulsa, 359 F.3d 1241, 1245

(10th Cir. 2004); Freeman v. Dallas, 242 F.3d 642, 647 (5th Cir.

2001); Samuels v. Meriwether, 94 F.3d 1163, 1168 (8th Cir. 1996).

But see Conner v. City of Santa Ana, 897 F.2d 1487, 1490-92 (9th

Cir. 1990).

     In the case at hand, the County afforded Nixon numerous

procedural guarantees before it entered her property, including

prior written notice, a 10-day waiting period, and the opportunity

to appeal to a board of appeals.                       Nixon has not provided any

reasons    why       an    ex    parte   warrant       requirement    would    be     more

satisfactory than the existing safeguards, and she has not alleged

that the particular procedures afforded to her failed to assure the

reasonableness of the County’s actions.


                                              8
     Furthermore, even if Nixon could demonstrate an unreasonable

seizure occurred under the Fourth Amendment, Martell and Bird would

enjoy qualified immunity so long as they could have reasonably

believed that their behavior did not violate a constitutional

right.       Qualified   immunity   protects   “all   but   the   plainly

incompetent or those who knowingly violate the law.”          Malley v.

Briggs, 475 U.S. 335, 341 (1986).         Even viewing the facts in the

light most favorable to Nixon, there is no evidence that any County

official “knowingly violate[d]” Nixon’s rights.        On the contrary,

the record indicates that all County employees reasonably believed

themselves to be acting in accordance with the law during the

“clean and lien.”

     For these reasons, Nixon’s Fourth Amendment claims likewise

fail.



                                    IV.

        Finally, we address Nixon’s state law conversion and trespass

claims.     For both trespass and conversion, there is an implicit

defense if the acts are committed pursuant to a lawful purpose.

See Heinze v. Murphy, 24 A.2d 917, 922 (Md. 1942) (holding that an

officer entering an individual’s property in the line of duty was

not liable for trespass); Darcars Motors v. Borzym, 841 A.2d 828,

836 (Md. 2004) (recognizing that conversion is “not the acquisition

of the property by the wrongdoer, but the wrongful deprivation of


                                    9
a person of property to the possession of which he is entitled”).

Moreover, conversion is an intentional tort requiring both a

physical assertion of ownership over another’s property and the

mental intention to deprive that person of his or her lawful

property.   Borzym, 841 A.2d at 836.    Here, Nixon has offered no

evidence that any County official intentionally deprived her of any

property that she lawfully possessed.    Thus, her conversion claim

fails.

     The district court also rejected Nixon’s trespass claim.

Crucially, in contrast to conversion, trespass can involve either

“an intentional or negligent intrusion upon or to the possessory

interest in property of another.” Ford v. Baltimore City Sheriff's

Office, 814 A.2d 127, 129 (Md. App. 2002) (emphasis added).       On

appeal, Nixon pursues only the trespass claim against Martell.

Construing the facts in her favor, as we must, the complaint does

state a trespass claim against Martell.       Accordingly, we must

reverse the grant of summary judgment to Martell on this claim.   Of

course, on remand the district court may exercise its discretion to

dismiss the state law claim against Martell, without prejudice, now

that no federal law claims remain.    See United Mine Workers of Am.

v. Gibbs, 383 U.S. 715, 726 (1966).




                                10
                               V.

     For the foregoing reasons, the judgment of the district court

is



                           AFFIRMED IN PART AND REVERSED IN PART.




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