SEYMOUR, Circuit Judge.
After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Cir.R. 10(e). The cause is therefore ordered submitted without oral argument.
Margaret Wolfenbarger brought this action under 42 U.S.C. § 1983 (1982) against the City of Lawton, City police officers Clancy Williams and Loy Bean, Chief of Police Robert Gillian, Comanche County District Attorney Dick Tannery, and Comanche County Assistant District Attorney Robert Perrine. Wolfenbarger, a licensed Oklahoma pawnbroker, alleges that defendants violated her constitutional right to due process when they seized certain property from her pawnshop and turned it over to a third party. The district court held that Wolfenbarger did not have a protected property interest in the items, and granted summary judgment in favor of defendants. We reverse.
Wolfenbarger owns and operates Shady Sam's Pawn Shop in Lawton, Oklahoma. On August 15, 1980, Williams entered Shady Sam's while investigating a report of stolen property. The property, a stereo receiver and cassette player, had been reported as stolen
On October 30, 1980, District Attorney Tannery wrote a letter to Chief Gillian informing him of a change in the procedure Lawton police were to follow when they discovered suspected stolen property in pawnshops. The letter stated:
Rec., vol. I, at 89.
Okla.Stat. tit. 21 § 1092 (1981) requires a pawnbroker to permit a police officer to inspect the premises for stolen goods during usual business hours.
Gillian promulgated Tannery's letter to all members of the Lawton police department. On November 10, Williams and Bean returned to Shady Sam's and seized the two items Williams had previously identified and placed on hold. After giving Wolfenbarger a receipt for the items, Williams placed them in the Lawton police station property vault. Acting on District Attorney Tannery's behalf, Perrine sent a memorandum on November 13 to Williams directing him to release the two items to Logens. Williams complied the next day and gave the items to Logens.
Immediately after Williams seized the two items, Wolfenbarger brought a replevin action against him in state court. After Williams gave the items to Logens, the court declared the replevin action moot because
In evaluating Wolfenbarger's due process claim we look to Oklahoma law to determine the nature and extent, if any, of her property interest in the stereo items.
It is true that under Oklahoma law, no one can confer a better title than he has. Wolfe v. Faulkner, 628 P.2d 700, 702 (Okla.1981); Al's Auto Sales v. Moskowtiz, 203 Okl. 611, 224 P.2d 588, 591 (1950); see also Okla.Stat. tit. 12A, § 2-403(1) (1981) (buyer of goods cannot acquire greater title than seller). Since the true owner of the property cannot be divested of his ownership by a thief without his consent, even an honest pawnbroker cannot hold stolen property as against the true owner. Adkisson v. Waitman, 202 Okl. 309, 213 P.2d 465, 466 (1949). However, Wolfenbarger's lack of title is irrelevant to the existence of her rights in the property as against defendants. Under Oklahoma law, one who possesses property without having title to it nonetheless has a recognized property interest.
First, a pawnbroker's special property interest will support an action for replevin. See Williams v. Williams, 274 P.2d 359, 362 (Okla.1954); cf. Riesinger's Jewelers, Inc. v. Roberson, 582 P.2d 409, 411 (Okla.App.1978). In such an action the question of ownership and the right to possession is for the trier of fact. Henderson v. Lacy, 347 P.2d 1020, 1021 (Okla.1959). In addition, possession is prima facie proof of ownership. Al's Auto Sales, 224 P.2d at 591. Because there had been no judicial determination of either the property's ownership or the right to possess it, Wolfenbarger's possession was prima facie proof that she was entitled to retain the stereo equipment at the time defendants confiscated and turned it over to Logens.
More importantly, the Oklahoma Supreme Court has held that even one who acquires stolen property from a thief has a lawful and enforceable property interest in such property. In Snethen v. Oklahoma State Union of the Farmers Educational & Cooperative Union, 664 P.2d 377 (Okla.1983), the court was faced with deciding the property rights of a good-faith purchaser of stolen property. While acknowledging that a purchaser under defective title could not hold against the true owner, the court noted that the purchaser has a "qualified possessory interest" and has "lawful possession against all the rest of the world." Id. at 381. The court distinguished
Id. (emphasis added).
Although the ultimate issue in Snethen was whether one could have an insurable interest in stolen property, its reasoning and holding also apply to this case and refute the argument that Wolfenbarger had no legally protected property interest in the stereo equipment. The record does not indicate, nor do defendants allege, that Wolfenbarger was anything but an innocent pawnbroker who gave value for a pledge of stolen property. Like a good-faith purchaser for value, an innocent pledgee's lack of title does not defeat the lawfulness of her possession, nor does it diminish her rights against the rest of the world, including defendants in this case.
Finally, the relevant Oklahoma statute itself demonstrates that the holder of stolen property has some protected interest, because the state has provided for a judicial determination of ownership or possession prior to the return or release of seized property. See Okla.Stat. tit. 22 §§ 1321, 1322. It is defendants' bypassing of this required procedure that Wolfenbarger claims offends due process.
The district court reasoned that it did "not interpret section 1983 or the Constitution to permit the recovery of damages for seized property to a person whose right therein is in derogation of the rights of the true owner." Rec., vol. I, at 99. This conclusion erroneously assumes that the existence of a property interest depends only on one's ability to recover damages for the actual value of the items seized.
Wolfenbarger does not claim that her right to own the property was violated but rather, that her right to due process was violated. Although she may not recover the actual value of the items once she assumed the business risk of erroneously dealing with a thief, she may recover other damages for the violation of her right to due process. She may be entitled to nominal damages, see Carey v. Piphus, 435 U.S. 247, 266-67, 98 S.Ct. 1042, 1053-54, 55 L.Ed.2d 252 (1978), punitive damages against some of the defendants, see Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983); Lavicky v. Burnett, 758 F.2d 468, 477 (10th Cir.1985), or injunctive or declaratory relief. The fact that she does not have all the remedies available to a true owner with legal title is therefore irrelevant to the threshold issue of whether she has some constitutionally protected property interest.
Accordingly, we hold that Wolfenbarger had a constitutionally protected property interest in the stereo items sufficient to support a claim of violation of due process. The district court erred in holding to the contrary.
Defendants claim that even if Wolfenbarger had a protected property interest, their actions did not violate due process because Oklahoma provides adequate post-deprivation remedies. They rely on the Supreme Court's decisions in Hudson v. Palmer, ___ U.S. ___, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), and Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). For the reasons set forth below, we believe neither of these decisions supports the grant of summary judgment in this case.
Parratt, 451 U.S. at 539, 101 S.Ct. at 1915. The Court noted that where a loss of property is caused by the random, unauthorized act of a state employee, the state cannot predict when the loss will occur. Id. at 541, 101 S.Ct. at 1916. As the Court observed,
In Hudson, the Court reaffirmed and extended the reasoning of Parratt to an unauthorized and intentional deprivation of property by a state employee. See 104 S.Ct. at 3203-04. In holding that such a deprivation does not violate due process, the Court explained:
Id. at 3203. In rejecting the contention that one who intentionally deprives another of property can provide predeprivation process and therefore must do so, the Court in Hudson emphasized that "[t]he controlling inquiry is solely whether the State is in a position to provide for predeprivation process." Id. at 3204. In this connection, the Fifth Circuit recently noted:
Augustine v. Doe, 740 F.2d 322, 327 (5th Cir.1984) (citations omitted).
The situation in this case differs significantly from that in Parratt or Hudson. To begin with, not only is the state in a position to provide predeprivation process, it has expressly done so through the enactment of sections 1321 and 1322. Oklahoma has recognized that far from being impracticable or impossible, a hearing after the police initially take possession of property and before they release it is the most timely and efficient point at which to adjudicate property interests. Cf. Coleman v. Turpen, 697 F.2d 1341, 1344 (10th Cir.1983). The state recognizes this point as the time at which the harm to an individual can best be minimized while also accommodating the state's interest in restricting the movement of allegedly stolen property.
Once the police have confiscated and secured allegedly stolen property, the "necessity
The record developed prior to the summary judgment motion indicates that the additional critical elements of random and unauthorized state conduct are not present here. In Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982), the Court held that Parratt does not apply, and that post deprivation remedies do not satisfy due process, where a deprivation of property is caused by conduct pursuant to established state procedure. See id. at 435-37, 102 S.Ct. at 1157-59; see also Hudson, 104 S.Ct. at 3204. This distinction between random, unauthorized conduct and conduct pursuant to established state procedure is significant. See, e.g., Augustine, 740 F.2d at 327-29. As the Court noted in Logan, once the state has conferred a property interest, it may not authorize the deprivation of such an interest without procedural safeguards that comport with the standards of federal due process. See 455 U.S. at 432, 102 S.Ct. at 1155.
In Patterson v. Coughlin, 761 F.2d 886 (2d Cir.1985), the Second Circuit recognized that "established state procedure" involves more than the mere promulgation of procedures. There the court addressed an argument that Parratt and Hudson required dismissal of a section 1983 action against prison officials who, contrary to state law, refused to accord petitioner due process before ordering him to disciplinary confinement with loss of good time credits. The district court had dismissed the claim, stating: "Because the procedures existed, but were allegedly not followed, no meaningful predeprivation hearing was possible." Id. at 889-90. The appellate court rejected this contention.
Id. at 891 (footnote omitted) (emphasis added). The court concluded:
Id. at 892 (emphasis added).
In Lavicky v. Burnett, 758 F.2d 468 (10th Cir.1985), we recently considered a similar situation. In that case, Oklahoma sheriffs and deputy sheriffs seized a larceny defendant's pickup truck for use as
We believe the reasoning and holding of Lavicky apply to this case. The record developed thus far indicates that the seizure and subsequent disposition of the stereo equipment were planned and authorized. District Attorney Tannery's letter to Chief Gillian reflects a conscious decision to alter the department-wide policy concerning allegedly stolen property and it is undisputed that Williams, Bean, and Gillian acted in direct response to this policy and the orders initiated by Tannery. Ten days after Tannery's letter to Gillian, Williams and Bean seized the stereo equipment, relying on this directive. It is also undisputed that Williams returned the property to Logens only after direct written authorization from Assistant District Attorney Perrine, acting on Tannery's behalf. In fact, the record indicates that on another occasion defendants followed an almost identical course of conduct with other property belonging to Wolfenbarger.
The conduct of which Wolfenbarger complains is the direct result of a directive issued by the district attorney, who under Oklahoma law shares with the county sheriff responsibility for law enforcement in the county. See Okla.Stat. tit. 19 § 215.5 (1981); Op.Okla. Att'y Gen. No. 79-98 (1979). As a result of his position as an enforcement executive, law enforcement agents are guided by the district attorney's interpretations and policies. His decisions thus take on a force and effect that can lead to widespread abuse of official power. As we recently noted in Hewitt v. City of Truth or Consequences, 758 F.2d 1375, 1379 (10th Cir.1985), it is precisely the abuse of official power that 42 U.S.C. § 1983 was designed to remedy. We conclude that official acts initiated and controlled by a district attorney cannot be characterized as random or unauthorized. Accordingly, Parratt and Hudson do not apply to Wolfenbarger's due process claim.
The judgment of the district court is reversed and the cause is remanded for proceedings consistent with this opinion.
SETH, Circuit Judge, dissenting:
I must respectfully dissent from the majority position because I am not convinced that we should decide the due process issue on the basis of this summary judgment record, and as an issue not decided by the trial court. I would remand to the trial court.
If the due process issue is to be decided I would apply Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420, and Hudson v. Palmer, 468 U.S. ___, 104 S.Ct. 3194, 82 L.Ed.2d 393, and thus would depart from the majority opinion. I also no
The Fourteenth Amendment due process clause is, of course, not intended to protect citizens from deprivations of property by individuals whether they be public employees or officials. The protection afforded is only against the state itself.
The problem which immediately arises in an examination of a deprivation of property incident, as in the case before us, is that it is difficult to keep the focus on the state itself in the "random" and "unauthorized" evaluations of pre-deprivation conduct as directed by the Supreme Court in Parratt v. Taylor and Hudson v. Palmer, and not to let the focus slip back to the point of view of the employees involved in the incidents. The individuals are the actors and the defendants and the first impulse is to evaluate especially the "random" element from their position.
The "random" and "unauthorized" conduct from the position of the state is demonstrated in Hudson in the intentional deprivation there concerned, but from the position of the employee it was there not random but intentional and planned. In the case before us the action of the officials from their point of view was not random but intended and planned. However, in looking at the acts from the position of the state itself, as we must, the acts were random, unexpected and unpredictable. They were such that predeprivation due process was "impracticable" as in Hudson. As the Court there said:
The random elements of Hudson are thus present and we are not concerned with the alternative need for quick action.
The Court in Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265, was concerned with an act of a state agency in setting plaintiff's hearing date on a discharge claim beyond the time provided by state law. The state court held that, since it was beyond the statutory time, the agency conducting the hearing was without jurisdiction. The Supreme Court held the late setting was a direct action of the state agency in terminating plaintiff's right to a hearing. The operation of the state machinery itself was the fault. The court refers to "state procedure," and to the term in Parratt used in contrast to a random act by a state employee, but this is a narrow concept as the case includes only statutory dates and hearings. The Court so indicates in Logan after a reference to Parratt's mention of "established state procedure":
In my view, when the focus is on the state the deprivation of the property was just as "random" here as it was in Hudson. As the Court said in Parratt:
Even if the Logan decision is vastly expanded, we have here no "established state procedure" which was followed. Instead there is a letter from the District Attorney suggesting that items believed to be stolen found in pawnshops should be seized and taken to the police station. There is also a form signed by an Assistant District Attorney authorizing the delivery of the property so seized (and other property) to the person claiming ownership. The form was for the release of "evidence," but there was no case. There was no determination of the rights of plaintiff by a hearing or otherwise. No one was identified as the thief nor was anyone prosecuted for a theft of the items reported stolen. No action was filed. The identity of the person who pawned the property was also never established. The serial numbers on the property reported stolen by Mr. Loggens and on the pawned items matched.
Although in my view it is not significant, I cannot agree with the characterization of the District Attorney as a "policymaking state official." In Oklahoma there is no chief law enforcement officer among the county officials. The sheriff and the District Attorney are on a par as to this function and are to assist each other in the performance of law enforcement duties. The District Attorney has the duty to "prosecute all actions for crime committed in his district," and defend civil actions brought against the counties. The District Attorney is to give advice to county officials. He is elected on a district-wide basis. There appears to be no indication in the statutes that the District Attorney is to give advice to city and town police departments. But he or she is to prosecute violations of the state criminal laws which take place in his district. His policymaking seems to be limited to deciding whether to prosecute or not.
Thus, even if the District Attorney is a policymaker in directing the disposition of property contrary to state statutes, he is not the "state" for the purpose of the Fourteenth Amendment. He is at best a public employee directing action contrary to state law in a random way.
As indicated in the majority opinion, the trial court decided only the property interest issue, and found none to support the action. The proceedings were cut short and no other issues were considered. Under the admonitions of Parratt and Hudson the examination of the due process question, in my view, is not completed and cannot be completed on this record which at the most describes some pre-deprivation process.
I see no indication in the decisions on the particular issue before us nor in the basic Fourteenth Amendment opinions which would permit us to characterize these decisions by district or county officials as actions by the state itself within the Logan decision. The action of the Assistant District Attorney here concerned in directing the release of the property to Mr. Loggens without any determination as to the rights of the plaintiff should not be regarded as a statement of policy, if that is significant, nor be considered as "established state procedure" as the term is used in Parratt. The action instead was a random act by the official as far as the state is concerned and as far as the Fourteenth Amendment is concerned.
There are innumerable levels of policymaking in state and local government including that made in local police departments. As considered in this context all public employees are "policymakers" in some of their functions. It is difficult to see how this "policy" can become "established state procedure" without doing violence to the Fourteenth Amendment and to the Hudson and the Logan opinions.
The characterization of the acts of local employees as "policymaking" as a device to place the considerations of process into the pre-deprivation category only is not responsive to Hudson and Logan. It destroys the balance between state and federal courts in the determination of the basic issues.