USCA4 Appeal: 23-1277 Doc: 61 Filed: 06/10/2024 Pg: 1 of 30
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 23-1201
MARSHALL TODMAN; TIFFANY TODMAN
Plaintiffs - Appellees
v.
THE MAYOR AND CITY COUNCIL OF BALTIMORE
Defendant - Appellant
------------------------------
MARYLAND MULTI-HOUSING ASSOCIATION, INC.
Amicus Supporting Appellant
and
PUBLIC JUSTICE CENTER; CIVIL JUSTICE; HOMELESS PERSONS REPRESENTATION PROJECT; MARYLAND LEGAL AID
Amici Supporting Appellees.
No. 23-1277
Plaintiffs - Appellants USCA4 Appeal: 23-1277 Doc: 61 Filed: 06/10/2024 Pg: 2 of 30
Defendant - Appellee
Amicus Supporting Appellee
PUBLIC JUSTICE CENTER; CIVIL JUSTICE; HOMELESS PERSONS REPRESENTATION PROJECT; MARYLAND LEGAL AID
Amici Supporting Appellants.
Appeal from the United States District Court for the District of Maryland at Baltimore. Deborah Lynn Boardman, District Judge. (1:19−cv−03296−DLB)
Argued: March 22, 2024 Decided: June 10, 2024
Before WILKINSON and THACKER, Circuit Judges, and FLOYD, Senior Circuit Judge.
No. 23-1201 affirmed and No. 23-1277 dismissed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Thacker and Judge Floyd joined.
ARGUED: Michael Patrick Redmond, BALTIMORE CITY LAW DEPARTMENT, Baltimore, Maryland, for Appellant/Cross-Appellee. Conor Brendan O’Croinin, ZUCKERMAN SPAEDER, LLP, Baltimore, Maryland, for Appellees/Cross-Appellants. ON BRIEF: Ebony M. Thompson, Acting City Solicitor, Matthew O. Bradford, Chief of Staff, Renita L. Collins, Chief Solicitor, BALTIMORE CITY LAW DEPARTMENT, Baltimore, Maryland, for Appellant/Cross-Appellee. Joseph S. Mack, THE LAW OFFICES OF JOSEPH S. MACK, Baltimore, Maryland, for Appellees/Cross-Appellants. Avery Barton Strachan, Kerri L. Smith, SILVERMAN | THOMPSON | SLUTKIN |
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WHITE LLC, Baltimore, Maryland, for Amicus Maryland Multi-Housing Association, Inc. Melanie Babb, Murnaghan Appellate Advocacy Fellow, PUBLIC JUSTICE CENTER, Baltimore, Maryland, for Amici The Public Justice Center, Civil Justice, Homeless Persons Representation Project, and Maryland Legal Aid.
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WILKINSON, Circuit Judge:
When a tenant is evicted in Baltimore, any personal property left in or about the
premises is immediately deemed abandoned. See Baltimore City Code art. 13 § 8A (the
“Abandonment Ordinance”). The landlord then takes ownership of the property and can do
anything he likes with it, except dump it on public streets or sidewalks. He can keep it,
pawn it, or take it to a landfill. He can even, as in this case, attempt to sell it back to his
former tenants.
Here, plaintiffs Marshall and Tiffany Todman lost their belongings by operation of
the Abandonment Ordinance when they were evicted earlier than expected. The Todmans
sued the Mayor and City Council of Baltimore (collectively, “the City”), alleging (among
other things) that the City had deprived them of their personal property without due process
in violation of the Fourteenth Amendment and seeking damages under 42 U.S.C. § 1983.
The district court agreed and granted summary judgment in favor of the Todmans. The City
now appeals that ruling. Because we agree with the district court that the Todmans were
owed more process than they received and that the City was responsible for that failure of
process, we affirm.
I.
A.
At the heart of this case are the City’s choices about the handling of possessions left
behind by evicted tenants. Evictees leave things in their former homes for various reasons.
Sometimes they leave behind items they no longer want (and truly intend to abandon),
making disposal of those items someone else’s problem. But other times tenants leave
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items they have every desire to keep: perhaps they were mistaken about the date of the
eviction, or maybe they had yet to find somewhere new to live. Whatever the reason,
landlords and officials carrying out evictions are often faced with handling belongings left
behind, and they need clear procedures for how to do so.
States across the country manage this process in a variety of ways. Most states
require that tenants’ belongings be stored (sometimes by the landlord and sometimes by
the municipality) for some period after an eviction during which tenants can reclaim them.
See, e.g., Idaho Code § 6-316(2) (3 days); Maine Rev. Stat. tit. 14 § 6013(3) (7 days); Ala.
Code § 35-9A-423(d) (14 days); W. Va. Code § 55-3A-3(h)(3) (30 days); see also
Appellee’s Response Br. 36 n.4 (collecting statutes). Other states, including Maryland,
instruct that a tenant’s belongings are to be removed from the premises. See Md. Code,
Real Prop. § 8-401(f)(1)(i). In practice, such belongings are usually “placed on the street
at the risk of the tenant.” State v. Boone, 284 Md. 1, 7 (1978).
The usual Maryland process, however, was proving untenable in Baltimore. More
than seven thousand evictions were being executed there every year, and by 2006
Baltimore’s Department of Public Works had three crews devoted to clearing eviction
chattels from the streets. Each year, these crews disposed of almost three thousand tons of
material. The cleanup effort was costing Baltimore $800,000 per year. But still the crews
could not keep up, and residents were complaining that evictees’ property was piling up on
Baltimore’s streets and sidewalks.
In 2007, a member of the Baltimore City Council proposed a bill intended to prevent
that property from ending up in public spaces. The original bill proposed that evictees
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would have three days post-eviction to reclaim any property left in their former homes. If
such property was not reclaimed within three days, it would be deemed abandoned and the
landlord could dispose of it as he wished, without, of course, dumping it on Baltimore’s
streets or sidewalks. Evicted tenants were to be notified of their reclamation rights and the
possibility of abandonment in two ways: by first-class, certified mail and by posting. The
proposed bill was sent for revisions to a working group comprised of various stakeholders.
As part of that working group, representatives of landlords’ associations (including amicus
Maryland Multi-Housing Association) proposed various revisions, many of which were
adopted.
The ordinance that came out of the working group (and that was eventually passed
into law as the Abandonment Ordinance at issue in this case) differed from the original
proposal in two important respects. First, it contained no reclamation period. Instead,
tenants’ belongings were conclusively deemed abandoned from the very moment of
eviction. Baltimore City Code art. 13 § 8A-4. Second, it altered the notice requirements.
Given that there was no longer a reclamation period, there was no need to notify evictees
of such a right. Instead, the ordinance required the landlord to “notify the tenant of the date
on which the warrant of restitution”—in other words, the eviction—“is first scheduled to
be executed by the Sheriff.” § 8A-2(b). That notice must “prominently warn the tenant that
any property left in the leased dwelling will be considered abandoned and may be disposed
of.” § 8A-2(d)(4).
The complexity of the whole scheme, however, was magnified by the fact that not
all groups of evictees were entitled to receive the aforementioned notice of abandonment.
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Tenants being evicted for failure to pay rent, for example, were treated differently from
those who might be paying rent but stayed in the premises beyond the terms of their lease.
The former group was entitled to notice upon the receipt of which they might repay due
rent, while the latter group (called holdover tenants) was not. See § 8A-2(a). Among those
not entitled to receive notice were the Todmans, who belonged to that latter group. For
them, the ordinance mandated no notice of the potential for or consequences of
abandonment at all. All tenants, even holdover tenants, do receive various forms of notice
relating to their eviction proceedings under Maryland state law. But neither state law nor
the local ordinance in Baltimore requires that they be provided any notice that upon
eviction their property would be deemed abandoned and that ownership of that property
would pass to the landlord.
B.
The Todmans were holdover tenants, which, recall, is one of the types of tenants not
covered by the notice requirements of the City’s Abandonment Ordinance. They had been
renting part of a house from its owner Brock Collins on a month-to-month basis without a
formal lease when Collins first asked them to move out in 2018. He asked them multiple
times to leave, but to no avail. By September 2018, Collins was tired of waiting. He served
them with a notice to quit tenancy, which under Maryland state law is the first step in the
process of evicting a holdover tenant. Still the Todmans remained.
The Todmans’ eviction thereafter proceeded in accordance with Maryland law.
Their landlord had to wait at least sixty days after serving them with a notice to quit tenancy
before he could file a tenant-holding-over action in Maryland state court. See Md. Code,
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Real Prop. § 8-402(c)(2)(i). Collins waited even longer—until May 13, 2019. After Collins
filed, the Todmans were served with a notice to appear at a hearing via posting on the
leased premises. See id. § 8-402(b)(1)(ii).
The tenant-holding-over hearing—attended by Collins and the Todmans—was held
on July 2 to determine whether to award Collins a “judgment for restitution of the
possession of [the] premises,” see id. § 8-402(b)(2)(i), which would mean that the Todmans
had been ordered to vacate. At the hearing, the Todmans explained to the presiding judge
that they wanted to leave and had found another place to live, but that their new place
would not be available until August 2. The judge saw an opportunity for compromise, and
asked Collins if he would be willing to agree to a stay of the judgment to give the Todmans
time to move out.
Collins, however, was wary. In Baltimore City, a judgment of possession in favor
of the landlord does not automatically start an eviction. After receiving the judgment a
landlord still has to petition for a warrant of restitution. And only after the warrant issues
can the sheriff’s department schedule an eviction. Collins worried that if the judgment was
stayed until August 2, and the Todmans did not move out that day as promised, he would
be stuck with them for even longer. He told the judge that, in his experience, it would take
the sheriff’s department at least two weeks to schedule an eviction after a warrant for
restitution had issued. The judge thus proposed a shorter stay of the judgment of
possession, explaining:
[T]he stay of execution [of the judgment of possession] will be until the 16th of July at which point it would still take at least two weeks . . . to schedule
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an eviction. Therefore, you would still have your full month before you would be able to do it.
J.A. 55. Collins agreed, and the Todmans consented to an entry of judgment against them
with a stay of the judgment until July 16. Collins told the judge that he would wait to
petition for a warrant of restitution until July 17.
Collins, however, petitioned for a warrant of restitution two days earlier, and it
issued as soon as the stay was lifted. A copy of the warrant was mailed to the Todmans on
July 17. The warrant stated that the Todmans had been ordered evicted and warned
“THERE WILL BE NO FURTHER NOTICE.” J.A. 727. It did not provide an eviction
date. The back of the warrant did, however, contain a section with instructions for tenants
and landlords in Baltimore City, which included a bolded warning that “On eviction day
any personal property left in or around the rental unit is considered abandoned.” J.A. 728.
But the instructions in the warrant of restitution were misleading and confusing at
best. The instructions were not clear as to which types of evictions they applied to, and
information relevant to the potential for abandonment was buried among so many other
items that it almost assured a tenant would overlook or fail to notice it. The instructions
started by noting that landlords in a failure-to-pay-rent case (a type of eviction not
exempted from the Abandonment Ordinance’s notice requirements) “must provide notice
to the tenant of the first scheduled eviction date.” J.A. 728. Under that were instructions
for tenants who wished to challenge whether such notice was properly given and
instructions for landlords on proper disposal of abandoned property. Finally, at the bottom
of the Baltimore City section, the form warns in bold that “On eviction day any personal
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property left in or around the rental unit is considered abandoned.” J.A. 728. The Todmans
maintain that they never saw this notice, but they do not dispute that it was mailed to them
by the clerk.
The Todmans’ eviction was scheduled more quickly than expected: for July 31, two
days before the date they had told the judge they would be out by. As is standard practice,
the sheriff’s department notified Collins of that date. But the parties dispute whether
Collins passed that information on to the Todmans. Collins maintains that he told Mr.
Todman the date of the eviction in person while he was mowing the lawn; Mr. Todman
denies the conversation took place. Meanwhile, the Todmans continued planning to be
moved out by August 2, and Mr. Todman reserved a moving truck for use on August 1.
The eviction happened as scheduled on July 31 while the Todmans were at work.
Mrs. Todman’s mother was alone at the property when Collins arrived with a sheriff’s
deputy. The deputy ordered her to leave. On her way out, she was able to grab only her
medications, telephone, and phone charger. Collins then took possession of the premises,
and everything of the Todmans that remained “in or about” the home (including Mr.
Todman’s motorcycle on the lawn) was deemed immediately abandoned by operation of
the City’s Abandonment Ordinance. Collins texted Mr. Todman: “as of this Morning
everything in and on the property are my possession per Balt city law.” J.A. 390.
According to the Todmans, they were left with only the clothes they had worn to
work. The property they lost included clothing, furniture, electronics, kitchenware, and the
aforementioned motorcycle, which Mr. Todman asserts was moved the morning of the
eviction from the public street to the lawn by Collins so that Collins could claim it as his
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own. The Todmans also contend that Collins took possession of family photos and the
cremated remains of Mrs. Todman’s grandfather.
After the eviction, Collins offered to give the Todmans their property back—so long
as they paid him $5,800. They were unable to pay, but Collins ended up returning some of
their possessions anyway. The parties dispute precisely what property the Todmans were
left without after all was said and done. They agree, however, that at least some items were
never returned.
C.
The Todmans sued Collins and the City in federal district court. Collins eventually
settled and is no longer a party to the case. As for the City, the Todmans sought damages
and declaratory relief under 42 U.S.C. § 1983, alleging that the City’s Abandonment
Ordinance violated the Takings Clause of the Fifth Amendment and the substantive and
procedural due process guarantees of the Fourteenth Amendment. On a motion to dismiss
by the City, the district court dismissed the Todmans’ takings claim but let their Fourteenth
Amendment claims go forward.
After discovery, the Todmans and the City filed cross-motions for summary
judgment on whether the Todmans’ constitutional rights had been violated. The district
court granted the Todmans’ motion and denied the City’s, finding that the Todmans had
suffered a constitutional violation because the Abandonment Ordinance, as applied to
them, had violated their right to procedural due process. See Todman v. Mayor & City
Council of Baltimore, 631 F. Supp. 3d 314, 340 (D. Md. 2022).
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The district court went beyond just granting the Todmans’ motion, though. Section
1983 claims against municipalities require that a plaintiff show not only that his rights were
violated, but also that the municipality was responsible for that violation. See Covenant
Media of SC, LLC v. City of North Charleston, 493 F.3d 421, 436 (4th Cir. 2007). Although
the Todmans had “moved for summary judgment only on whether their constitutional
rights were violated,” the district court found that they were also “entitled to summary
judgment on the issue of the City’s responsibility for the constitutional violation.” Todman,
631 F. Supp. 3d at 341 n.14. The City did not object to this sua sponte ruling below, and
the district court entered judgment against the City and scheduled a trial on damages.
After a three-day damages trial, a federal jury awarded the Todmans $36,000 in
compensatory damages and $150,000 for emotional distress. The City has not challenged
the amount of that award on appeal.
The City instead appeals the district court’s summary judgment rulings. It argues
that neither the Abandonment Ordinance nor its application to the Todmans violated due
process, and that even if it did that application cannot be laid at the feet of the City. It also
contends that the district court erred procedurally when it granted summary judgment on
the City’s responsibility without allowing the City to brief the issue first. In response, the
Todmans filed a conditional cross-appeal, asking that we review the district court’s
dismissal of the Todmans’ takings claim in the event that we found their due process claims
lacked merit.
We review a district court’s disposition of cross-motions for summary judgment de
novo. Fusaro v. Howard, 19 F.4th 357, 366 (4th Cir. 2021). For the reasons below, we hold
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that the City’s Abandonment Ordinance violated the Todmans’ constitutional rights by
depriving them of their property without due process of law and that the City is liable for
that violation. We thus affirm the district court’s grant of summary judgment in favor of
the Todmans. Having affirmed, we need not address the arguments presented in the
Todmans’ conditional cross-appeal.
II.
We start with the City’s contention that the Todmans’ procedural due process rights
were not violated at all. Due process is guaranteed by the Fourteenth Amendment, which
prohibits the states from “depriv[ing] any person of life, liberty, or property, without due
process of law.” To establish a procedural due process violation under § 1983, plaintiffs
must show (1) that they were deprived of a cognizable liberty or property interest (2)
through some form of state action (3) with constitutionally inadequate procedures. See Iota
Xi Chapter of Sigma Chi Fraternity v. Patterson, 566 F.3d 138, 145 (4th Cir. 2009).
The Todmans clearly meet the first two requirements. First, they were deprived of
a protected property interest. Ownership interests in personal belongings are protected
under the Due Process Clause. Fuentes v. Shevin, 407 U.S. 67, 89–90 (1972). The Supreme
Court of Maryland, previously the Maryland Court of Appeals, has confirmed that
Maryland tenants retain those interests through an eviction. See Nickens v. Mount Vernon
Realty Grp., LLC, 429 Md. 53, 78–79 (2012), other holdings overturned by legislative
action. And no one contests that, at the moment their eviction was carried out, the Todmans
lost all ownership rights to their property. Hence they were deprived of a protected interest.
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Second, the City’s Abandonment Ordinance (which is clearly a form of state action)
caused that deprivation. To show state action, plaintiffs “must prove both but-for causation
and proximate causation—in other words, that the alleged wrongful act(s) caused [their
deprivation] and the [deprivation] was a reasonably foreseeable result of the act.” Gilliam
v. Sealey, 932 F.3d 216, 238 (4th Cir. 2019). The City concedes that its Abandonment
Ordinance was a but-for cause of the Todmans’ deprivation. Appellant’s Reply Br. 29. And
the Todmans’ loss was surely a “reasonably foreseeable result” of the ordinance—it was,
in fact, precisely the result intended. The Todmans have thus met their burden here as well.
We thus conclude that the Todmans were deprived of a cognizable property interest
by state action—namely, the operation of the City’s Abandonment Ordinance. The first
two requirements having been met, we turn to the third: whether the procedures provided
here were constitutionally adequate.
“The essence of due process is the requirement that ‘a person in jeopardy of serious
loss [be given] notice of the case against him and opportunity to meet it.’” Mathews v.
Eldridge, 424 U.S. 319, 348 (1976) (quoting Joint Anti-Fascist Refugee Comm. v.
McGrath, 341 U.S. 123, 171–72 (1951) (Frankfurter, J., concurring)). The twin
requirements of notice and opportunity to be heard are distinct and “governed by different
standards.” Snider Int’l Corp. v. Town of Forest Heights, Md., 739 F.3d 140, 146 (4th Cir.
2014). The Todmans, however, received neither.
Start with notice. Notice must be “reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and afford them
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an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co.,
339 U.S. 306, 314 (1950). The means employed to send that notice must “be such as one
desirous of actually informing the [interested party] might reasonably adopt to accomplish
it.” Id. at 315. The notice itself must also be “reasonably calculated to convey information
concerning [the] deprivation.” Snider Int’l, 739 F.3d at 146.
Here, the Todmans needed to be notified of the threat of abandonment should their
personal possessions be left in the leased premises at eviction. None of the pre-hearing
notices given to the Todmans as part of the state-law eviction procedures even mentioned
the possibility of personal-property abandonment. So those cannot possibly have provided
sufficient notice.
The only notice that could even be said to have attempted to inform the Todmans of
the possibility of abandonment was the copy of the warrant of restitution in their case sent
to them by mail on July 17. But this notice was not sufficient either. While delivery by mail
is a constitutionally sufficient method of providing notice, see Snider Int’l, 739 F.3d at 146,
the content of the notice mailed to the Todmans was not reasonably calculated to convey
the relevant information.
The warning about the potential for abandonment in the warrant of restitution was
found in small print two-thirds of the way down the back of the form. Moreover, the form
did not make clear that the risk of abandonment applied to holdover tenants like the
Todmans. The paragraph that warned of the threat of abandonment came after several
paragraphs of information explicitly directed at failure-to-pay-rent tenants. A reasonable
person reading the form could interpret the abandonment warning as applying only to
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failure-to-pay-rent tenants, not to holdover tenants such as the Todmans. Moreover,
persons facing eviction could fairly assume that if they were at risk of the deprivation of
all their belongings they would have been notified in a more fulsome and less obscure way.
The Todmans were not lawyers, and even an attorney might find it time-consuming
to wade through the many provisions of the warrant of restitution before coming to the
arguably inapplicable section on abandonment. First, the Todmans would have had to read
the small print in a box on the front of the warrant partially obstructed by the seal of the
court that instructed: “See the notice on the back of this form for the special procedures in
Baltimore City.” J.A. 727. They would then have needed to turn to the back of the form
and find the section entitled “Baltimore City Only: Important Notice to Defendants.” That
section began: “The landlord in a failure to pay rent case must provide notice to the tenant
of the first scheduled eviction date.” J.A. 728 (emphasis added). The Todmans would need
to recognize that this instruction did not apply to them, but continue reading anyway. The
next paragraph contained instructions for how tenants could challenge whether the notices
due to them were properly given. Given that the Todmans were not entitled to notice, this
paragraph wouldn’t apply to them either. But the paragraph did not make that clear. In fact,
it didn’t make any mention of the types of evictions it did or did not apply to. Instead, the
instructions relied on readers like the Todmans to infer that the previous paragraph’s
limitation to failure-to-pay-rent cases carried forward. So far the Todmans would have
perused two paragraphs, neither of which applied to them. And were they to continue
reading, they would have found that the third paragraph was likewise inapplicable. It
contained instructions not for tenants, but for landlords on how to dispose of “abandoned
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property.” J.A. 728. The Todmans, of course, would have recognized that they were not
landlords at all. But even though the warrant had moved on from instructions for tenants
to instructions for landlords, the Todmans would have had to have kept reading. If they did
read on, the very last paragraph of the Baltimore City section stated in bold: “On eviction
day any personal property left in or around the rental unit is considered abandoned.” J.A.
728. But even if the Todmans got there, they would likely be left with some uncertainty
because this paragraph likewise failed to clarify which evictions it applied to. Did it apply
(as the only other paragraphs in the section directed at tenants did) only to tenants in failure-
to-pay-rent cases? Or did it apply to everyone?
The notice in the warrant of restitution seemed more likely to impede the Todmans’
understanding of their predicament than to fairly inform them of it. It was certainly not
“reasonably calculated to convey” the information the Todmans needed in order to avoid
the deprivation that awaited them. Snider Int’l, 739 F.3d at 146.
The City points out that the warrant of restitution is a form created by the Maryland
judiciary, and that the City has no control over its content. But if the state judiciary is not
providing sufficient notice of the City’s ordinance, the City must step in to provide that
notice if it wants its ordinance to survive a due process challenge. As mentioned above, the
Abandonment Ordinance includes just such additional notice requirements for other types
of evictions. The City retorts that it is prohibited from requiring additional notice in
holdover cases by Maryland law, which says that after satisfying the steps laid out by state
law, landlords are entitled to an eviction order “without any additional notice.” Md. Code,
Pub. Local Laws, art. 4 § 9-19. But that law says they are entitled to an eviction order, not
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to their tenants’ belongings. The City could still (consistent with state law) condition the
triggering of the Abandonment Ordinance on the landlord’s providing additional notice.
Or it could undertake to provide such notice itself. What it cannot do is evade the
requirements of the Due Process Clause by throwing up its hands and saying, “We don’t
make the notice form.”
Respecting one of the Constitution’s most basic guarantees should be simple and
straightforward. The notice due plaintiffs such as the Todmans should include the date of
the eviction and the threat and consequences of abandonment. Critically, the notice should
be readily accessible and easily understood and should be of a form that drafters of the
ordinance would appreciate if their own property were at risk. The notice here was not
sufficient.
Compounding the lack of sufficient notice was the absence of any method by which
the Todmans could contest the deprivation. As mentioned above, due process requires that
a person at risk of deprivation receive a meaningful opportunity to be heard before that
deprivation becomes final. An “opportunity to be heard” need not always be a full
evidentiary hearing. See Mathews, 424 U.S. at 333–35. Meaningful opportunities to contest
a deprivation can take many different forms depending on what “the particular situation
demands.” Id. at 334. To determine whether a challenged process is meaningful in light of
the deprivation at issue, courts look to the three-factor balancing test articulated in Mathews
v. Eldridge, 424 U.S. 319 (1976). Application of the three Mathews factors here makes
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clear that the Todmans were entitled to more process than the City provided before their
personal property rights were extinguished.
1.
The first Mathews factor is “the private interest . . . affected by the official action.”
424 U.S. at 335. The private interest at stake here is substantial. Evictees in Baltimore face
the potential loss of any personal belongings left in or about the leased premises.
“[H]ousehold goods” like the ones the Todmans lost are an “important interest” and
merit the protection of procedural due process. Fuentes, 407 U.S. at 89. “It is, after all,
such consumer goods that people work and earn a livelihood in order to acquire.” Id. And
Baltimore evictees stand to lose not only valuable goods like electronics, furniture, dishes,
and clothing, but irreplaceable personal items such as photographs, mementos, and
cremated remains. See Br. of the Public Justice Center, et al. as Amici Curiae 17 (describing
a client who had lost a pet and family photographs and two others who had lost ashes of
their deceased relatives).
People being evicted are also likely to be facing wider financial distress, and the
belongings at risk of deprivation might constitute the only property that they have. The loss
of that property might be quite painful indeed. As amicus notes, “[p]roperty rights become
dearer, not less important, for people who possess comparatively little.” Id. at 5. The nature
of the rights at issue here thus weighs in favor of meaningful procedural protections
designed to ensure that evictees’ possessions are not wrongly deemed abandoned.
2.
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The second Mathews factor is “the risk of an erroneous deprivation of [the private]
interest through the procedures used, and the probable value, if any, of additional or
substitute procedural safeguards.” 424 U.S. at 335. Here, the risk of erroneous deprivation
was significant and additional safeguards would have mitigated that risk. To begin with,
there was no post-deprivation mechanism at all by which the Todmans could reclaim or
assert possession of their property and rebut the inference that they wanted to give that
property up. 1 This lack of process created an unacceptable risk that evictees would be
deprived of property they had every intention to keep. The risk of error is exacerbated by
the lack of adequate notice described above: Evictees who have not been clearly notified
1 The City contends that tenants like the Todmans are not left without post- deprivation remedies. It advises that dispossessed tenants can seek recourse via any legal or equitable remedies offered under Maryland law. According to the City, those remedies should suffice under Culley v. Marshall, 114 S. Ct. 1142 (2024), as a post-deprivation hearing that would alleviate the need for any prior notice or preliminary hearing at all. In Culley, the Court considered the appropriate timing of hearings governing civil forfeiture. Property is subjected to such forfeiture only if used in connection with a crime, and police often seize the property at the moment the crime is discovered without notice or a pre- seizure hearing. But criminal accoutrements are a far cry from household belongings to which no crime has been attached. And Culley made clear that even owners of property seized for civil forfeiture are entitled to a timely forfeiture hearing before their property is deemed forfeited. See id. at 1150.
Here there was no such hearing before the Todmans’ property was deemed abandoned. None of the rudiments of due process, including proper notice, was ever provided them. And it is not enough for the City to gesture to the availability of general state procedures for conversion or breach of contract. We cannot see how those causes of action could provide the Todmans with relief from the unrebuttable presumption of abandonment that attached to their property by operation of the Abandonment Ordinance. It is that decree to which the Todmans were denied the opportunity to be heard. And we cannot believe that the Supreme Court would place its imprimatur on anything like the complete absence of process presented here.
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of the abandonment risk facing them do not even know to take pre-deprivation precautions.
For them, a post-deprivation remedy is even more important.
Given the absence here of any opportunity at all to contest the abandonment,
additional safeguards would be quite valuable. Even a short post-deprivation reclamation
period could decrease the risk of error significantly. Take as an example the precise
situation of the Todmans. They had boxed up all their belongings and intended to move
them to their new home. They had even hired a moving truck, slated to come the very next
day. Had the Abandonment Ordinance provided for any reclamation period at all—even
one as short as a few hours—they would have been able to retrieve their belongings.
In short, the risk of error is not slight, and additional procedural safeguards would
be likely to help.
3.
The third Mathews factor is “the Government’s interest, including the . . . fiscal and
administrative burdens that the additional or substitute procedural requirement would
entail.” 424 U.S. at 335. The City’s interest here is in avoiding eviction chattels cluttering
Baltimore’s streets (and saving the money Baltimore was previously spending on disposing
of such clutter). Many Baltimore citizens have written to the City in support of that interest,
see J.A. 287–93, and we agree that the City’s goal here is a laudable one. The
neighborhoods in which eviction chattels are most often left on the street may be the ones
least able to withstand the decline in civic morale that accompanies visible blight. Even so,
the City’s goal here would not be impaired by clear notice of the date of eviction and the
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prospect of deprivation or by an opportunity for tenants to contest the presumption of
abandonment and secure a brief window in which to reclaim their property.
The City has not suggested to us any way in which its interest in keeping eviction
chattels off the streets would be harmed by these additional procedures. It resorted instead
to a shell game. Rather than arguing that it was without mitigating options, it claimed that
it was prohibited from undertaking such procedures by Maryland state law, which states
that a warrant of restitution should “command[] the tenant . . . forthwith to deliver to the
landlord possession [of the premises] in as full and ample manner as the landlord was
possessed of the same at the time when the tenancy was made.” Md. Code, Real Prop. § 8-
402(b)(2)(i) (emphasis added). According to the City, the word “forthwith” prohibited it
from offering any sort of post-eviction reclamation period during which the premises
would remain encumbered by the former tenant’s belongings. But it is not clear that
“forthwith” means in this context “without any delay at all.” Even without a reclamation
period, the sheriff does not immediately execute the warrant of restitution. As Collins noted
during the eviction hearing, it often takes at least two weeks.
The presence of notice and a short reclamation period would not mean more
property would end up on the streets. It would not mean that parties should be permitted to
dispose of items in such a congestive fashion. In fact, giving notice of the date of eviction
and the threat and consequences of abandonment might well encourage tenants to take pre-
eviction measures to safeguard their property.
There are any number of ways, including those adopted by other jurisdictions, see
section I.A supra, for the City to achieve its undeniably legitimate aims without
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extinguishing evicted tenants’ entire property rights with no semblance of proper notice or
opportunity for reclamation. The three Mathews factors weigh in favor of the Todmans and
against the current procedural regime. It is not our job to tell the City how to achieve its
objectives. The City must, however, achieve its goals in a way that complies with both state
and federal law—and that includes the due process protections guaranteed in the United
States Constitution.
III.
The City says, however, that none of the above really matters because this case is
governed by Texaco, Inc. v. Short, 454 U.S. 516 (1982). According to the City, Texaco
provided specific guidance on what process is due before property can be deemed
abandoned and is thus the governing standard here. We disagree.
In Texaco, the Supreme Court held that Indiana could pass an abandonment statute
that allowed the retention of unused mineral rights only on “the performance of reasonable
conditions” without incurring a duty to notify potentially affected citizens of that statute
beyond the usual publication of the law. Id. at 526, 531–33. The City reads Texaco to mean
that state and local governments can alter the common law standards of abandonment in
any way they see fit, and that when they do so they need not provide individuals at risk of
abandonment with individual notice or an opportunity to be heard. According to the City,
notice of the potential operation of an abandonment statute can instead be accomplished
by general publication of the law, and the burden is on potentially affected parties to
familiarize themselves with the law and ensure that they do not slip into its reach. The
Abandonment Ordinance, the City contends, is just such a statutory modification of the
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common law of abandonment, with the “reasonable condition” that tenants must remove
their property from the premises prior to an eviction in order to keep it.
On this view, the Todmans were responsible for knowing the content of the
Abandonment Ordinance and making sure that they complied with its strictures. In short,
they need not have received individual notice nor been given any procedural reprieve when,
just as the ordinance stipulated, they lost their belongings after failing to remove them.
But Texaco does not grant local governments as sweeping an authority over
abandonment designations as the City’s reading might suggest. The statute at issue in
Texaco deemed mineral interests abandoned when their owners had taken no action at all
concerning those interests for a period of twenty years. Any action that “ma[d]e any use of
the property”—including producing or attempting to produce minerals, paying or receiving
rent or royalties, or paying taxes on the interest itself—would reset the twenty-year clock.
Id. at 518, 530. And even an owner who had made no use of his property could file a written
statement of claim in the county recorder’s office to prevent his interest from lapsing. Id.
at 518. Recognizing that states had long had “the power to permit unused or abandoned
interests in property to revert to another after the passage of time,” id. at 526 (emphasis
added), the Court held that owners of potentially lapsing interests need not be individually
notified of the threat of lapse, id. at 532.
The Court’s focus in Texaco on the passage of time is no accident. At common law,
abandonment is an individualized inquiry and requires a showing of an intent to abandon.
See United States v. Locke, 471 U.S. 84, 98 (1985). But individualized inquiries are
expensive and time-consuming. To effectuate the smooth transfer of abandoned property
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so that it can be put back to productive use, states have codified bright-line rules that deem
property abandoned after long periods of nonuse. See Cerajeski v. Zoeller, 735 F.3d 577,
579 (7th Cir. 2013). In these statutes (which have been upheld as constitutional, see Texaco,
454 U.S. at 526–27), nonuse serves as a reasonable proxy for intent to abandon. If an owner
has not made any use of an interest in decades, it is reasonable to predict he is unlikely to
use it in the future and reasonable to require him to take affirmative actions to establish
that he intends to keep the interest.
In contrast, when operation of a confiscatory statute is triggered by something other
than long periods of nonuse, it starts to look less like abandonment and more like a
government-induced forfeiture. In Tyler v. Hennepin County, 598 U.S. 631 (2023), the
Court rejected another municipality’s contention that Texaco allowed it to deem a
plaintiff’s home “abandoned” when she had failed to pay property taxes on it. Id. at 646–
47. There, the county had argued that “the owner can be considered to have abandoned her
property” because she had failed to abide by the “reasonable condition” of paying her taxes.
Id. at 646. Therefore, according to the county, it need not have returned to her the excess
proceeds from a tax sale of her home when the sales price was greater than her tax debt.
The Court was not swayed. “Abandonment,” it explained, requires “the owner’s
failure to make any use of the property—and for a lengthy period of time.” Id. at 647. The
forfeiture scheme at issue, by contrast, had no similar time-period requirement and
accorded “no weight to the taxpayer’s use of the property.” Id. A home could be deemed
abandoned even when the owner had lived in it right up until the moment the government
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took it. Id. The Court thus held that the county could not avoid the strictures of the Takings
Clause by naming the confiscation “abandonment.” Id.
The City’s policy here is similarly ineligible for Texaco treatment. The conditions
that trigger abandonment under the Abandonment Ordinance—like those in Tyler—were
not well-tailored to evicted tenants’ desires to abandon their property. Like the tax debtor
in Tyler, evictees can continue to use their personal property right up until the moment of
eviction, and still the property will be deemed abandoned by operation of the ordinance.
And while it is true that some evictees who leave their property on the leased premises
really are intending to abandon it, it is much too poor a proxy to operate without individual
notice or an opportunity to contest the deprivation. In short, this is not a traditional
abandonment law at all.
Tyler, of course, was concerned with takings and here we are considering a due
process challenge, but the two concepts are intertwined, and we see no reason that the
property protections afforded under the Due Process Clause ought not to track the rule laid
out in Tyler. See Cerajeski, 735 F.3d at 582 (commenting that abandonment policies with
nonuse requirements shorter than usual could trigger due process rights). Just as “a State
may not sidestep the Takings Clause by disavowing traditional property interests long
recognized under state law,” Phillips v. Washington Level Found., 524 U.S. 156, 167
(1998), so too a municipality may not sidestep the demands of due process by calling
property “abandoned” when none of the traditional markers of abandonment are present.
Were we to hold otherwise, local governments could opt out of the Due Process Clause
altogether by recharacterizing any deprivation as an abandonment. See Hall v. Meisner, 51
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F.4th 185, 190 (6th Cir. 2022) (“[T]he Takings Clause would be a dead letter if a state
could simply exclude from its definition of property any interest that the state wished to
take.”). To repeat, we hold that the Todmans were entitled to individual notice that their
property was at risk and procedures by which they could protect their interest. And, as we
held above, the notice and process that they received here were constitutionally inadequate.
IV.
We turn now to the final question: whether the City can be held liable for the due
process violation the Todmans suffered. Recall that plaintiffs seeking § 1983 damages from
a municipality must show not only that they suffered a constitutional violation, but also
that the municipality was responsible for the violation and its attendant harm. See Covenant
Media, 493 F.3d at 436. Local government entities are considered responsible only for
unconstitutional actions that “implement[] or execute[] a policy statement, ordinance,
regulation, or decision officially adopted and promulgated by that body’s officers.” Monell
v. New York City Dept. of Social Servs., 436 U.S. 658, 690 (1978). In other words, the City
can be held liable only for “action[s] pursuant to official municipal policy of some nature.”
Id. at 691. The City’s Abandonment Ordinance is just such an official municipal policy.
See Spell v. McDaniel, 824 F.2d 1380, 1385 (4th Cir. 1987) (“[M]unicipal ‘policy’ is found
most obviously in municipal ordinances.”).
An unconstitutional policy, however, does not immediately entitle a plaintiff to
compensation. There must be a “direct causal link” between the municipal policy and the
constitutional deprivation. City of Canton v. Harris, 489 U.S. 378, 385 (1989). Here, the
causal link is clear. The Abandonment Ordinance was what gave the Todmans’ landlord
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the right to claim possession of their things with legal impunity. As a self-executing statute,
it operated automatically without the interference of any other actors upon the Todmans’
eviction.
And the unconstitutional lack of procedure here was no accident. The Abandonment
Ordinance was implemented against the Todmans in conformity with the exact procedures
the municipality chose. When a municipal policy “directly commands or authorizes
constitutional violations, the causal connection between policy and violation is manifest
and does not require independent proof.” See Spell, 824 F.2d at 1387 (internal citation
omitted). The Abandonment Ordinance here commanded that the Todmans should forfeit
their property with no notice requirement and no reclamation rights. There is thus a direct
causal link between the City’s policy and the violation of the Todmans’ constitutional
rights and the City can fairly be held responsible to them for the suffering and loss that
resulted.
The City tries to evade that responsibility by insisting that it does not control the
eviction process—and therefore should not bear responsibility if the process was
administered unconstitutionally. The City is right that evictions are administered by the
Maryland state judiciary, but that is of no moment here. The procedures of the eviction
process are not being challenged; the procedures surrounding the Abandonment Ordinance
are what we have held were insufficient. And the confiscatory aspect of the Abandonment
Ordinance is not governed by the state eviction process. State-judiciary-led eviction
proceedings do not generally purport to encompass tenants’ rights to their personal
property or the abandonment of the same. The state judge in the Todmans’ eviction
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proceedings specifically instructed them that she would hear only arguments concerning
the judgment of possession of the premises leased from Collins. “[A]ny other issues,” she
told them, “[a]re not relevant.” J.A. 44. In short, the State generally provides procedures
related to the disposition of the premises (a disposition that is governed by state law);
procedures for carrying out the City’s Abandonment Ordinance are left to the City to sort
out for itself.
It is true that the state judiciary (and not the City) authored the warrant of restitution
that we held above provided insufficient notice. But the failure of process does not become
the responsibility of the State just because the State has elected to provide some notice of
the City’s policy in the course of its administering evictions. When a municipality passes
an ordinance purporting to affect the rights of its citizens, the municipality is the entity
responsible for making sure that the ordinance does so constitutionally.
Contrary to the City’s protestations, this principle is in line with the edicts of Monell.
Monell says that a municipality is not responsible when individuals working on behalf of
the municipality commit a constitutional violation in the absence of a municipal policy.
See 436 U.S. at 691. But each of the actors here—the state judiciary, the sheriff, and
Collins—operated within the Abandonment Ordinance’s scheme. The City’s policy,
embodied in its own ordinance, is specifically not to require notice for holdover tenants
and not to provide a reclamation period. It cannot then point the finger elsewhere when
notice is not given and reclamation not provided for.
In sum, we think it eminently fair to hold a municipality responsible for harm caused
by a failure of due process when it passes a confiscatory ordinance that fails to provide for
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the process due. We therefore hold that the City is responsible for the Todmans’
constitutional harms and liable to them for their damages under § 1983, and affirm the
district court as to the same. 2
For the foregoing reasons, the Todmans were denied the process they were due. We
affirm the district court’s grant of summary judgment in favor of the Todmans on the City’s
liability under § 1983. Having affirmed on the basis of the Todmans’ due process
challenge, we need not address the takings issues raised in the Todmans’ conditional cross-
appeal and thus dismiss it.
No. 23-1201 AFFIRMED; No. 23-1277 DISMISSED.
2 In affirming on the merits, we reject the City’s procedural challenge to the district court’s sua sponte ruling as well. The district court relied on the City’s concession below that, if the district court found the Todmans’ rights had been violated, the only issue left for the jury would be damages. See J.A. 778. And the City waived any right to object on appeal when it failed to lodge an objection with the district court after the summary judgment ruling. See 10A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2720.1 (4th ed.) (“[I]f the parties fail to object to the court’s sua sponte entry of summary judgment, they will be found to have waived their objection on appeal.”).