B. Operation Killjoy is Attributable to the District
The District may be held liable for causing a constitutional deprivation through an officially adopted "policy statement," Monell, 436 U.S. at 690, or through a custom or usage that, though never formally approved through "official decisionmaking channels," id. at 690-91, may nonetheless "be said to represent official policy." Id. at 694. In either case, the essential requirement is that the policy or custom be sanctioned by the "final policymaking authority" in that area of the city's business. See St. Louis v. Praprotnik, 485 U.S. 112, 123, 108 S. Ct. 915, 99 L. Ed. 2d 107 (1988) (plurality opinion) (citing Pembaur v. Cincinnati, 475 U.S. 469, 482-83 & n. 12, 106 S. Ct. 1292, 89 L. Ed. 2d 452 (1986) (plurality opinion)).
This occurs not only when a subordinate casts a decision in the form of a policy statement that the supervising policymaker "expressly approve [s]," but also when the subordinate makes "a series of decisions" that "manifested a 'custom or usage' of which the supervisor must have been aware." Id. at 130.
Applying these standards, we have no trouble concluding that Operation Killjoy was sanctioned by Turner, and therefore represents a policy, custom, or usage attributable to the District itself. At all relevant times, Turner, as Chief of Police, was the MPD's "final policymaking authority." See Praprotnik, 485 U.S. at 123 (plurality opinion). Under applicable regulations, he was the MPD's "chief executive officer," and as such had "authority to plan and prescribe departmental policy," including "the coordination, direction and control of all Metropolitan Police programs, services, and operations." D.C. Mun. Regs. tit. 6A, §§ 800.1, 800.16 (1984). Furthermore, he was empowered "to delegate authority" to subordinates "in such a degree as in his . . . judgment [was] necessary to establish and maintain efficiency and good administration." Id. § 800.20.
The evidence demonstrates that Turner, in addition to being "chief executive officer" of the MPD, also sanctioned Operation Killjoy. Spurlock testified that after approving the final plan for Killjoy, he forwarded it through the chain of command for Turner's approval. See Spurlock Dep. at 5. After being informed of the plan, including its provision for secret storage of recovered vehicles, Turner authorized Spurlock to implement it. See id. at 9-11, 14-15. The evidence further indicates that Turner was aware that owners would not be notified when their vehicles were recovered, and that they would not be allowed to repossess their vehicles until after the Operation was over. See id. at 18-19, 20, 22, 27-28.
Thus, Turner either "expressly approved" the non-notification and secret storage provisions or knowingly acquiesced in their implementation. See Praprotnik, 485 U.S. at 130 (plurality opinion).
Moreover, Operation Killjoy clearly constituted a policy, custom, or usage. "The word 'policy' generally implies a course of action consciously chosen from among various alternatives." City of Oklahoma City v. Tuttle, 471 U.S. 808, 823, 105 S. Ct. 2427, 85 L. Ed. 2d 791 (1985). Operation Killjoy was chosen in precisely this manner. See Spurlock Dep. at 3-4; Skolada Dep. at 9-12. It was planned for several months, committed to writing, sanctioned by Turner, and put into effect for four months. It yielded 119 recovered vehicles, which, pursuant to Operation procedure, were secretly stored without notice to their owners until after the Operation ended. See Skolada Dep. at 13, 14-15. Under these circumstances, we hold that the deprivation suffered by these owners resulted from an established, governmental procedure, not some random action on the part of a lower level District employee. See Hudson v. Palmer, 468 U.S. 517, 533, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984). We turn now to the substance of plaintiff's due process claim.
C. Operation Killjoy Violated Plaintiff's Fifth Amendment Rights
In order to prevail, plaintiff must show that defendants, deprived her of property "without due process of law." U.S. Const. amend. V;
see West v. Atkins, 487 U.S. 42, 108 S. Ct. 2250, 2255, 101 L. Ed. 2d 40 (1988). In determining whether procedural due process was accorded, we must consider three separate factors: first, the private interest affected; "second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value . . . of additional or substitute procedural safeguards;" and third, the District's interest. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976) (citation omitted); see also Logan v. Zimmerman Brush Co., 455 U.S. 422, 434, 102 S. Ct. 1148, 71 L. Ed. 2d 265 (1982) (citations omitted). As for the first factor, plaintiff obviously had a strong interest in repossessing her Skylark once the police recovered it. As for the second, because not a single protective procedure was in place, deprivation was a virtual certainty. Turning to the third factor, although the District's interest in the integrity of the Operation was strong, some procedural protection of plaintiff's interest was required.
When an established governmental policy will cause a person injury, the government normally must provide a predeprivation process to determine whether the injury will be proper and, if not, the amount of compensation due. See Zimmerman Brush, 455 U.S. at 436; see also Parratt v. Taylor, 451 U.S. 527, 537, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981). A postdeprivation process is constitutionally inadequate unless quick governmental action is necessary or unless providing a predeprivation process is otherwise impracticable. See Zimmerman Brush, 455 U.S. at 436 (citations omitted). This is particularly true where, as here, the District's only postdeprivation process "comes in the form of an independent tort action." Id.; see infra Sec. IV.
While we decline to delineate the precise protections that were due, at the very least plaintiff was entitled to prompt notification when her Skylark was recovered and some form of compensation for the four month deprivation that followed. Defendants provided nothing of the kind, despite the fact that MPD officers ordinarily must "immediately notify" owners when their vehicles are recovered. MPD General Order 401.1, pt. I(I)(6) (1984). According to Spurlock, providing notice would have "defeated" "the ends of justice." See Spurlock Dep. at 25. This position is completely unfounded. Even assuming that secret storage was essential to the Operation's integrity, we fail to see what threat would have been posed had the police simply notified owners of their vehicles' recovery and compensated them for the deprivation that followed. To add insult to injury, however, when the police finally informed plaintiff that her car had been recovered, they lied about having kept it for four months and offered her no compensation. Without a doubt, defendants' conduct resulted in a clear denial of plaintiff's constitutional rights.
D. Defendants do not Enjoy Qualified Immunity
Neither the District nor the individual defendants, insofar as they are sued in their official capacities, may assert a qualified immunity defense under section 1983. Owen v. City of Independence, 445 U.S. 622, 638, 100 S. Ct. 1398, 63 L. Ed. 2d 673 (1980); see Will, 109 S. Ct. at 2311 (a suit against an official in his official capacity is equivalent to a suit against the government itself). Insofar as they are sued personally, however, the individual defendants have properly raised this defense. See, e.g., Procunier v. Navarette, 434 U.S. 555, 98 S. Ct. 855, 55 L. Ed. 2d 24 (1978); Wood v. Strickland, 420 U.S. 308, 95 S. Ct. 992, 43 L. Ed. 2d 214 (1975); Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974). Nevertheless, because their conduct resulted in the violation of "clearly established . . . constitutional rights of which a reasonable person would have known," they are not entitled to qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982).
Public officials are charged with "a presumptive knowledge of and respect for 'basic, unquestioned constitutional rights.'" Harlow, 457 U.S. at 815 (citing Wood v. Strickland, 420 U.S. at 322). In mid-1987, when Killjoy was implemented, the law clearly required that some predeprivation process be provided in connection with the MPD's four month retention of plaintiff's car. See Zimmerman Brush, 455 U.S. at 436. Since defendants accorded plaintiff no procedural protections whatsoever, they cannot seriously maintain that their conduct was objectively reasonable. Accordingly, their qualified immunity defense must fail. See Harlow, 457 U.S. at 818-19.
Having found defendants liable under section 1983, we now address plaintiff's claim of tortious conversion against the District.
IV. Plaintiff's Claim of Tortious Conversion
Plaintiff argues that the District is liable for tortious conversion under the doctrine of respondeat superior. We agree. The District may be sued for the intentional torts of its employees performing ministerial acts within the scope of their employment. See Dellums v. Powell, 184 U.S. App. D.C. 324, 566 F.2d 216, 223 (D.C. Cir. 1977), cert. denied, 438 U.S. 916, 98 S. Ct. 3146, 57 L. Ed. 2d 1161, 98 S. Ct. 3147 (1978); Wade v. District of Columbia, 310 A.2d 857, 863 (D.C. 1973).
The police officers who recovered the Skylark, failed to notify plaintiff, and placed the vehicle in secret storage were doing just that. Cf. Dellums, 566 F.2d at 223 & n. 25 (arrest function is ministerial) (citations omitted); Wade, 310 A.2d at 860 (District liable "for assault and battery and/or false arrest and imprisonment" inflicted by police officers) (citations omitted).
The elements of conversion are: (1) an unlawful exercise, (2) of ownership, dominion, or control, (3) of the personal property of another, (4) in denial or repudiation of that person's rights thereto. See, e.g., Duggan v. Keto, 554 A.2d 1126, 1137 (D.C. 1989) (citations omitted). We have already held that the police unlawfully kept plaintiff's car from her for almost four months. Clearly, the secret storage constituted control of the car in denial of plaintiff's rights thereto.
This is a classic case of conversion that occurred when the police, after lawfully coming into possession of plaintiff's property, thereafter wrongfully refused to surrender it. See Horne v. Francis I. duPont & Co., 428 F. Supp. 1271, 1275 (D.D.C. 1977).
For the reasons explained above, we hold:
(1) that defendants are "persons" within the meaning of 42 U.S.C. § 1983;