Nearly a year after attorneys filed a lawsuit against Wilmington and the private towing companies it contracts with claiming the city’s towing practices are unconstitutional, a federal judge advised attorneys the case will move forward.
“I don’t know when I’m going to get to this,” U.S. District Chief Judge Colm Connolly said Tuesday, remarking on how busy the court is. “The case is going to go forward – I’ll tell you that. Some aspect of the case is going forward.”
Last September, Wilmington residents Ameera Shaheed and Earl Dickerson filed a lawsuit saying the city is violating the Fourth, Fifth, Eighth and Fourteenth Amendments. According to the suit, the city allows private companies to tow legally parked cars that have unpaid parking tickets totaling over $200. If the owners do not pay the outstanding debt within 30 days, the tow companies can scrap the vehicles and keep the proceeds.
According to the suit, the city He suit by taking legally parked cars for unpaid parking tickets totaling over $200 and allowing private towing companies to scrap the vehicles and keep the proceeds if the owners do not pay the outstanding debt within 30 days.
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Attorneys from the Institute for Justice – a Virginia-based national law firm focused on limiting the size and scope of government power – representing Shaheed and Dickerson claim the city is violating the Takings Clause by allowing tow companies to sell or scrap a vehicle without the value being credited to the owners’ parking ticket debt, which, in turn, amounts to an excessive fine.
“It comes down to the idea that someone should not lose their car for a couple of parking tickets. That is quintessentially an excessive fine, which violates the Eighth Amendment,” Institute for Justice attorney Will Aronin said following a court appearance last week. “Additionally, we have due process claims – if they’re going to just destroy someone’s car, there has to be some sort of process to say whether that is right. People shouldn’t just lose their property.”
City attorneys moved to dismiss the case in November, denying any wrongdoing or constitutional violations with its towing and impoundment practice.
Prior case law along with state and city laws allow for the towing and impoundment of vehicles, which city attorneys stressed is a “police purpose,” and courts have determined that these actions along with parking tickets are not “disproportionate to the offense,” Deputy City Solicitor Rosemaria Tassone-DiNardo said during the hearing.
According to the complaint, in 2020, 2,551 cars were towed in Wilmington and more than 38% of them were never returned to their owners, a figure that city attorneys contested in federal court but did not provide data countering those statistics.
“I don’t think it’s that high,” Tassone-DiNardo told Connolly. “These vehicles can be towed for more than tickets.”
Cars may be towed following a crash, the city attorney noted. Dismissing the data cited in the complaint, Tassone-DiNardo argued the two plaintiffs’ cases do not meet the threshold to prove that this is customary in Wilmington.
Wilmington denied a Freedom of Information Act request for data on the number of cars towed and ultimately scrapped or sold by its contractor last year citing the federal lawsuit.
The city, through its spokesman, declined to comment or provide an interview for this article.
Is towing cars a police or public purpose?
The constitutional challenges brought against Wilmington task attorneys with determining whether the city’s towing and impoundment practices are a police or public purpose.
Wilmington attorneys say the practices are a police function, therefore the Fifth Amendment’s Takings Clause does not apply, and the city does not have to compensate the owners for the scrapped cars. The federal clause protects citizens from government taking private property for a public use without just compensation.
They also argue that the Eighth Amendment, which prevents the government from imposing excessive fines, does not apply.
The federal judge pushed back on the city’s argument, telling attorneys, “You can’t have it both ways.”
The practice is either a “public purpose” function and the Takings Clause would apply, or it’s a “police purpose” and the plaintiffs “have a case that it’s an excessive fine,” Connolly said.
Under Wilmington’s current system, cars with more than $200 in parking tickets can be towed. While someone can appeal the ticket, the only way the towing company will release the impounded vehicle is if the owner resolves the fines, which Aronin has likened to a ransom. If owners do not claim their cars within 30 days, the private tow company can scrap the vehicle and keep the proceeds, per Wilmington’s contract.
Those proceeds are not used to pay off the alleged debt by the owner, Aronin said, nor are owners paid the surplus from the company disposing of the car.
“What our clients suffered is the loss of a car, it’s not the loss of steel and iron and leather. They lost their ability to get to the doctors. They lost their ability to get around,” he said. “A car ‒ and there are courts all over the country that have said this ‒ is really important to people.”
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Even if Shaheed were to purchase a new vehicle, that car could be seized as well because the city still claims she has outstanding parking tickets, Shaheed’s attorney said.
While city attorneys pointed to other jurisdictions that have had their towing and impoundment practices upheld by the court, Aronin said – and the federal judge concurred – those cases are fact-based.
Other municipalities “take cars that are illegally parked and blocking traffic,” Aronin said.
They also do not include contractual language where the only way for private contractors to make money is by scrapping the cars, he said, and provide adequate opportunities to appeal those decisions.
“There really are inadequate procedural protections here,” Aronin said. “I don’t think I’ve seen a worse system.”
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