Impoundment & Towing

November 3, 2009

Police may exercise control, although not actual custody, over property such as disabled autos which have been towed. Police clearly are required to perform any duties regarding towed property in a non-negligent manner. Liability for failure to give notice of proposed destruction and wrongful refusals to authorize release of impounded vehicles reflect the same concerns as are present when the police directly impound.

For example, towing of a car parked on private property may violate the Fourth Amendment if there is no probable cause to believe that the owner had not given permission and if the car had been rendered unoccupied by a police order to leave. [1] A Fifth Amendment deprivation of due process claim based on violation of a department rule requiring the vehicle owner's express consent to a towing may also be viable under such circumstance.

In E. J. Strickland Construction v. Department of Agriculture, [2] negligent towing of a tractor was held to be actionable, as was conversion by refusal to authorize release from impoundment. Restatement (Second) of Torts § 265, which recognizes certain actions against chattels as being privileged non-conversions if committed within the exercise of an officer's authority, may not have been applicable when there were questions of fact as to whether the action was authorized. A Pennsylvania decision [3] held that police who directed a tower to tow, impound, and store allegedly stolen property entered into an implied contract to pay reasonable charges. The officers had apparent authority to perform the action and incur the liability on behalf of the defendant. A quasi-contractual unjust enrichment-quantum meruit theory also justified liability.

[1] See, e.g., Qutb v. Ramsey, 285 F. Supp. 2d 33 (D.D.C 2003).

[2] E. J. Strickland Construction v. Department of Agriculture, 515 So. 2d 1331 (Fla. Dist. Ct. App. 1987).

[3] Crawford's Auto Ctr. v. Pennsylvania, 655 A.2d 1064, 1069-71 (Pa. Commw. Ct. 1995).