vehicle impounded contrary to police policy

[robeyw]

What is the name of your state (only U.S. law)? Indiana
The Police Department has a sticker reading (in part) "WARNING This Vehicle may be impounded if not removed within time marked at top of ticket. Any parking ticket received must still be paid. 5 DAY-15 DAYS-4 HOUR: ARE TO BE DISREGARDED IF YOU REMOVE VEHICLE." Marked is 5 days 7.06.140, also a location, date & other info is written in. There is no indication of what the vehicle is to be removed from. 7.06.140 appears to refer to a city ordinance reading "No person shall park a vehicle which is not driveable or is out of commission nor shall any person store any vehicle, whether in running order or not, on any street, alley or city controlled parking lot or garage for a period of longer than five days continuously. Any unauthorized vehicle found in violation of such provisions of this section shall be removed under proper order of any police officer at the expense of the owner of such vehicle." Based on another ordinance, the penalty for violating the ordinance is a $10 fine. Nothing about removing a vehicle prior to the expiration of the indicated time. A police officer told me that the warning did refer to the above cited ordinance and that the vehicle should be moved rather than removed, further it was the policy of the police department to place such a sticker on the vehicle and wait the indicated time before having the vehicle removed. I received one of these warnings dated 2/01/11 indicating a street name as the location and had the vehicle moved to a different street. That was the most recent warning. I have a ticket from the garage that removed it dated 2/9/11 indicating the different street that it was taken from. No parking ticket was ever issued. When I ask the officer at the traffic desk to show me a copy of any ticket or warning showing the location from which the vehicle was removed, he could not do so. I think there is no way of proving what length of time the vehicle was continuously at the location from which the police had it removed.

So the question is what defense do I have against partial enforcement of ordinance 7.06.140 in a manner inconsistent with established policy? Since no ticket was issued, the police never had to prove that a violation occurred.

Here is a related question (enforcement of generally ignored law): I discovered ordinance 7.07.020 reading "No person who resides within the city shall ride or propel a bicycle on any street ... unless such bicycle has been licensed and a license is attached thereto"
Provisions ate given for obtaining and displaying the license. These provisions were enacted in 1971 and I have never seen such a license, though I have parked my bicycle in a well populated bicycle rack several times a week for over 10 years and often look at other bicycles there. What recourse would I have if I was arrested or ticketed for violating this ordinance?What is the name of your state (only U.S. law)?

 

[CdwJava]

The tow and storage may be pursuant to state law and not pursuant to local ordinance.

Out here we have a similar set of laws. We have a local ordinance that establishes the same five day rule and allows for a parking cite beyond that time. But, state law also permits the removal (towing) of the vehicle if parked for longer than permitted by local ordinance. Whether this is the case in IN I do not know.

Certainly they must have some paperwork that indicates an authority for the impound. Have they given you anything?

And why are you just now dealing with this when this happened four months ago? If IN is like my state, the time frame to contest improper tows is very short. You may have delayed long enough that you may no longer have a viable claim for damages even if they did foul up.

 

[robeyw]

CdwJava ask And why are you just now dealing with this when this happened four months ago?
IC 34-13-3, the Torts claim act gives 180 days.

CdwJava wrote "Certainly they must have some paperwork that indicates an authority for the impound." I think local ordinance 7.06.140 "Any unauthorized vehicle found in violation of such provisions of this section shall be removed under proper order of any police officer at the expense of the owner of such vehicle" would be the authority claimed. The issue I am attempting to explore is enforcement action which is contrary to traditional enforcement or to existing policy. Based on 29 AmJur 2d Evidence sec 1495 citing United States v. Hintzman 806 F2d 840 , I would not be able to support a claim of violation of equal protection but I think there are other principles that apply here. What would I search for to find them?

 

[BOR]

That case you cite is from the 8th circuit and the 8th does NOT cover IN. Also it is a selective prosecution case.

Your legal strategy is faulty.

Policy has no bearing. Unless you were charged and then sought the 10$ fine, it is an administrative matter.

TOWING is only pemitted under state law or local ordinance, meaning an officer can not just tow any vehicle they want to.

If you have incurred towing expenses you believe to be unjustified, contact the city law director for an opinion and reimbursment. If that fails, a lawsuit may be in order.

Unless you were singled out, for the sake of argument, for your race, the Equal Protection clause is not applicable. Selective enforcement can be for a non racial reason, but the criteria is very strict to prove it.

 

[CdwJava]

The point is that there is likely an appeals process you might have been required to avail yourself of prior to initiating any claim for damages. If you failed to take advantage of any such process, you may lose the ability to make a claim for damages.

I am not familiar with your state's impound and storage laws, but if they are remotely similar to mine, you have a short window (10 days here) to request a storage hearing. If you fail to do so you may severely impede or outright eliminate your opportunity to make a claim for damages.

All because it is common practice to issue a citation does not mean that they MUST do that. State law and local ordinance may also grant the option of an impound.

 

[BOR]

I am not familiar with your state's impound and storage laws, but if they are remotely similar to mine, you have a short window (10 days here) to request a storage hearing.

I should have mentioned this also, as we have a specific impound desk at our station also with detailed info.

 

[robeyw]

IC-13-3-8, part of the tort claims act mentioned previously provides for filing notice for claim against a political subdivision within 180 days of loss and before initiating any suit. I did not find anything with shorter time limits but will look specifically for impound & storage in the Indiana Code.

BOR's statement "Your legal strategy is faulty." referring to selective prosecution is incorrect. When I mentioned selective prosecution I indicated that this was NOT an approach that could be supported. My legal strategy was based on the police doing something inconsistent with their own policy or enforcing an ordinance normally ignored. I am still waiting for the first comment on this.

Clarification or elaboration on BOR's statements needed. BOR says
"Policy has no bearing. Unless you were charged and then sought the 10$ fine, it is an administrative matter.
"TOWING is only permitted under state law or local ordinance, meaning an officer can not just tow any vehicle they want to."

The city ordinance 7.06.140 says "Any unauthorized vehicle found in violation of such provisions of this section shall be removed under proper order of any police officer" but how is a vehicle found in violation? What would proper order require? 7.03.010 provides serially numbered forms for notifying violators to appear and answer to charges of violating traffic laws and ordinances, 7.06.990 sets fines for violation of the chapter (7.06) so both impoundment and fine would apply to the ordinance in question. Since I was not charged and there was no $10 fine, this would be an administrative mater according to BOR, but then where does the authority to impound come from? How do you prevent an officer from just towing any vehicle they want to?

 

[robeyw]

I am not familiar with your state's impound and storage laws, but if they are remotely similar to mine, you have a short window (10 days here) to request a storage hearing. If you fail to do so you may severely impede or outright eliminate your opportunity to make a claim for damages.

Based on my examination of West's Annotated Indiana Code I don't see anything about impound or storage hearings. There is a section on abandoned vehicles which can be impounded but before a vehicle can be considered abandoned on public property IC 9-22-1-11 and IC 9-22-1-14 must be complied with. They were not. Indiana code would seem to have nothing to say except to provide the procedure for recovering damages under the Tort Claim Act previously cited.

 

[robeyw]

I would have liked to post this question of law into a more general forum but could not find one. Perhaps I should have framed this as a question of notice. For example, when I complained to the Police about the warning saying that the vehicle had to be removed while there was no statutory requirement for this, I was told by an officer behind the counter that it should be moved not removed and that it was police policy to give the warning and wait the prescribed time. After the vehicle was impounded without first placing a warning sticker on the vehicle, I ask specifically if it was their policy to issue a warning sticker before impounding a vehicle and was told yes. It seems to me that these inquiries constituted notice to me that the vehicle would not be impounded pursuant to local ordinance before issuing a warning sticker which would start the clock. Could I get a comment on this?

This is the same question I tried to raise regarding the bicycle license. It seems to me that my extensive observation of bicycles without a city license would constitute notice that no license was required although a ordnance requiring one was on the books.

 

[CdwJava]

All because an act may not be consistent with common policy and practice does not mean it was in any way unlawful or that it will allow you to receive any form of compensation.

About the only way you are apparently going to see any chance of compensation here would be to take the matter to small claims court if you can and then see what a court has to say on the issue.