After using the Parking Kitty app to pay for an hour and nineteen minutes of parking in downtown Portland, Andrew Grimm left his car unattended for seven days while the number of tickets mounted.
The automobile was eventually towed by the city.
In his seven-year lawsuit against the city, which he claims violated his due process rights by failing to provide him with sufficient notice of the tow, Grimm lost the second round on Friday.
The city’s motion to have the case dismissed was previously granted by U.S. District Judge Michael W. Mosman. A three-judge federal appeals panel upheld Mosman’s decision this week after Grimm filed an appeal. In the case, the appellate court issued its second opinion. After determining that Mosman had used the incorrect legal criteria to dismiss Grimm’s suit, it returned the matter to him in 2020.
The 9th U.S. Circuit Court of Appeals panel decided on Friday that the city did not violate Grimm’s 14th Amendment rights and that it had given him adequate warning.
The accumulation of parking fines, according to Grimm and his attorney, proved that Grimm had not noticed them and had not been properly notified.
They argued that a government must mail a notice before towing an automobile, citing an appeals court ruling from Washington, D.C.
However, the 9th Circuit declared that to be unneeded and unfeasible.
Judge Holly A. Thomas noted in the 15-page judgment that “our precedents have already made clear that a ticket placed on a car generally provides adequate notice of an impending tow.”
On December 14, 2017, Grimm used the Parking Kitty app to pay for parking on Southwest Hall Street, between Fourth and Fifth avenues, between 5:41 and 7 p.m. His phone alerted him when his parking session was about to end and when it really did. He didn’t pay to start a new parking session, move his car, or extend his time.
Although his Honda Accord’s registration was current at the time, the license plates’ registration tags had expired in June 2017.
On December 15, a parking enforcement officer placed two penalties on the windshield of the Accord: one for parking illegally and another for failing to show the current registration plates.
An officer added two more citations for the same infractions to the previous two on December 18.
On December 19, an officer slapped a red slip notice with the word notice in bold letters on the automobile and added another citation for illegal parking on top of the stack. The warning further stated that the car would be towed if it was not relocated.
A final red slip warning with the word TOW written on one side was applied to the vehicle by an officer on December 21. Later that day, the Accord was towed when the officer got in touch with Retriever Towing.
Two days after a parking enforcement officer placed a red slip with the word “WARNING,” warning the driver that their car will be towed if they did not move it, Andrew Grimm’s Honda Accord received its last red tow notice on December 21, 2017.Portland, Oregon, court filing
The city did not attempt to get in touch with Grimm other than to mail a tow notice to the location on the car’s registration after it was towed.
On December 30, Grimm, 35, paid $514 to have the car picked up from the tow yard. He sued the city the following month on January 29, 2018.
The appeals court determined that the city had given Grimm all the legal notice, noting that he had two days to avoid the tow.
The decision also stated that because the vehicle was registered to Grimm’s father with a third-party lienholder, the city was not immediately aware of his identity and address.
According to the verdict, the city was also unable to reach Grimm via the Parking Kitty app and did not have access to his information.
However, the appeals court determined that it was not necessary to locate Grimm before having his car towed, even if the vehicle had been registered to him or if the city could have obtained his phone number or email via the app.
According to the 9th Circuit, notice must be given before an automobile is destroyed, not before it is towed, in the Washington, D.C., decision.
Because the tickets and tow notices were still on the car, the appellate panel questioned whether the city should have known that its efforts to inform Grimm of the infractions had been unsuccessful.
The 9th Circuit noted that Grimm was not needed to verify that he had received the warning slips or tickets due to the city’s notice procedure.
According to the court, notice is insufficient unless receipt is verified.
According to Thomas, under the strategy Grimm supports, people would have to routinely take tickets out of their cars to prove they had been notified and would have strong reason not to do so if they wanted to avoid getting towed.
Grimm’s attorney, Gregory William Keenan of the New York-based Digital Justice Foundation, contended that the city ought to have gotten the driver’s phone number or email address from the Parking Kitty app.
Parking Kitty had been given Mr. Grimm’s contact details. Someone had asked him how he wanted to be contacted. Additionally, Kennan noted that he had received multiple personalized notifications regarding his car and its parking status through Parking Kitty, but none of them had to do with the tow.
Even if modern technology makes it easier, governments are failing to fulfill their constitutional duties to give notice before seizing someone’s property, he wrote.
Grimm contended that before towing the vehicle, the city had to inform him of the infractions through other channels.
Is it unreasonable for the government to demand that the Parking Kitty app provide notice using already-existing communication channels or the data gathered through the app, given the enormous amount of work and taxpayer funds it has invested to digitally revamp its parking policy around the app? In his brief, Kennan inquired.
The city retorted that the personal data Grimm gave the parking app was not accessible to it.
In a court brief, Deputy City Attorney Elsa C.W. Haag stated that Parking Kitty is run by a third party, Passport Inc.
Although the City did not create Parking Kitty and has no control over its operation, she wrote, the City has a contract with Passport to offer a remote payment option in place of paying at the still-available physical pay stations.
Grimm was fined $10 for not displaying his current registration.
Emails and phone calls asking for comment on the opinion and whether they could appeal further were not answered by Grimm or his attorney.
A joint friend-of-the-court brief supporting Grimm’s lawsuit was filed by the San Francisco Coalition On Homelessness, the Lawyers Committee for Civil Rights of the San Francisco Bay Area, and Bay Area Legal Aid. They maintained that before reclaiming property, communities ought to be compelled to take reasonable measures, such looking through readily available computerized records.
However, a combined friend-of-the-court brief supporting the city of Portland’s position was filed by the League of California Cities, the city and county of Honolulu, the city of Los Angeles, and the Washington State Association of Municipal Attorneys. They contended that if the appeal panel had sided with Grimm, it would have put towing regimes in jeopardy throughout the circuit and signaled a radical shift in procedures.
— Maxine Bernstein writes about criminal justice and federal courts. You may contact her at [email protected], 503-221-8212, or follow her on LinkedIn or X@maxoregonian.
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