Wednesday, August 25, 2010

James Bush v. Michael O'Brien, et al.

Sometimes friends need to borrow a few dollars. Sometimes they need to use your car... to commit a string crimes. James Bush has a friend like that. On May 18, 2007 he lent his car to Roberto Diaz who promptly used it in a hit-and-run and maybe some other crimes. On May 20, he reported the car stolen and learned that it had been impounded. Where it sat... for two and a half months.

Eventually, Michael O'Brien, the police officer in charge of the case decided it was no longer needed for a criminal investigation. Leo's Towing sent Bush a notice saying that he needed to pay $4,700 or the car would be sold at auction. Bush refused to pay, and Leo's Towing sold the car.

In a rather interesting choice of claim, Mr. Bush sued Officer O'Brien under 42 USC 1983 for violating his civil rights. He alleged that impounding the car resulted in either a seizure contrary to the Fourth Amendment or a taking under the Fifth Amendment.

Judge Richard Seeborg found for Officer O'Brien on both counts. To prevail on a Fourth Amendment claim Mr. Bush would have had to provide evidence that there was no probable cause for the seizure, he had none. To prevail under a Fifth Amendment claim, the state actor (here O'Brien) would had to have taken the property, in fact Leo's Towing did. Both claims fail and Mr. Bush, now in prison, will need to get a new car when he gets out.

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