Arnold Murray, Appellant, v. City of Sioux Falls, a Municipal Corporation; Haroldhanson, Individually and in His Official Capacity; Rhondajensen, Individually and in Her Official Capacity; and Thesioux Falls Police Department, Appellees, 867 F.2d 472 (8th Cir. 1989)

Arnold Murray is the general partner of a limited partnership that owns Murray Apartments, located in Sioux Falls, South Dakota (the City). On February 29, 1984, it came to the attention of Rhonda Jensen, a Sioux Falls parking patrol officer, that snow had accumulated on the sidewalk at the Murray Apartments. Jensen contacted Murray and informed him that he would be arrested if he did not remove the snow from the sidewalk. Murray refused to comply with Jensen's instructions because the snow had been placed on the sidewalk by the City's own snow plows. On March 4, 1984, Jensen signed a complaint against Murray alleging a violation of a Sioux Falls ordinance, section 38-76, for failure to remove snow from the sidewalk on his property. On March 20, 1984, a warrant was issued for Murray's arrest. Murray was subsequently arrested by Sioux Falls Police Officer Harold Hanson on April 3, 1984, and was released later the same day after he posted a $25.00 bond. On May 24, 1984, Murray was found not guilty in a Sioux Falls magistrate's court.

Murray filed an action against the City and the officers involved in his arrest under 42 U.S.C. § 1983 in federal district court alleging unlawful arrest. The district court,¹  finding that probable cause existed for the filing of the complaint and the issuance of the warrant, granted defendants' motion for summary judgment on December 23, 1985. On appeal, a panel of this court affirmed the district court's determination of the probable cause issue. The case was reversed and remanded, however, "for consideration of the arrest authority conferred by the ordinance, and, if necessary, consideration of any immunity defenses that defendants may assert." Murray v. City of Sioux Falls, No. 86-5083, slip op. at 2 (8th Cir. Dec. 9, 1986) [808 F.2d 841 (table) ].

On September 25, 1987, the district court again entered judgment in favor of defendants. In its memorandum opinion, the court determined that South Dakota law, section 9-30-5, "contemplates that city ordinances relating to snow and ice removal will be enforced civilly rather than criminally." Murray v. City of Sioux Falls, No. 84-4248, slip op. at 3 (D.S.D. Sept. 25, 1987). Consequently, Murray's arrest was invalid since it was made pursuant to an ordinance that does not authorize arrests. The court, however, found that " [w]hile Murray was arrested and detained for a short period of time, it was pursuant to a warrant conforming to the requirements of the Fourth Amendment, and therefore, he suffered no constitutional deprivation." Id. at 4-5 (citing Baker v. McCollan, 443 U.S. 137, 99 S. Ct. 2689, 61 L. Ed. 2d 433 (1979)). In dictum, the court went on to find that Jensen and Hanson would be entitled to qualified immunity in any event. The court, however, found that the City would not be liable for various reasons. First, the district court found that plaintiff's arrest did not violate the fourth amendment because there was probable cause to issue the warrant. Second, the court reasoned that although the City is not entitled to good faith immunity, the City had not acted in bad faith because it could not have known the arrest was unlawful.² 

On appeal, both parties asserted that the district court's judgment had been entered without an accompanying memorandum opinion.³  Consequently, neither appellant's nor appellees' arguments address the soundness of the district court's analysis. Murray contends that the snow removal ordinance is purely civil and does not authorize arrests prior to hearing. Murray further argues that, even if the ordinance provides such power, authorization for arrest would go beyond the scope of the authority provided under State law. The City disagrees and states that Murray's arrest was a valid action taken under the authority of its lawfully enacted snow removal ordinance.

Both parties agree that municipalities are creatures of the State and possess only those powers granted under the State's constitution and statute. Schryver v. Schirmer, 84 S.D. 352, 354, 171 N.W.2d 634, 635 (1969). The parties also agree that Sioux Falls is empowered to enact a snow removal ordinance under South Dakota law: "Every municipality shall have power to require the owner of abutting property to remove snow and ice from sidewalks and weeds from parking, and to provide for their removal and for taxing the expense thereof by special assessment against the abutting property." S.D. Codified Laws Ann. Sec. 9-30-5 (1981). The parties disagree on whether Sioux Falls has overstepped the authority provided by this statute.

Sioux Falls' ordinance, section 38-76, states:

It shall be the duty of the owner, tenant, or person in possession of any property abutting on any sidewalk to keep such sidewalk free from snow and to cause any accumulated snow to be removed from any such abutting sidewalk within forty-eight (48) hours after the termination of any snowfall or snow accumulation.

Sioux Falls, S.D., Rev. Ordinances section 38-76. If any owner, tenant, or other individual in possession of any property violates section 38-76, "it shall be the duty of any police officer or parking patrol to issue a citation for such violation." Id. 38-78. Under this authority Parking Patrol Jensen signed the complaint against Murray alleging violation of the snow removal ordinance and a warrant for Murray's arrest was issued.

Murray claims that these ordinances exceed the authority granted by the State because failure to remove snow is a petty offense. Under South Dakota law, the violation of a petty offense warrants civil, rather than criminal, proceedings. S.D. Codified Laws Ann. 22-6-7 (1979). Violators are entitled to notice and a hearing, and an arrest is justified only where the violator fails to appear at the hearing. Id. 23-1A-19 (Supp.1987).

The City of Sioux Falls argues that Murray was not arrested for committing a petty offense. He was instead arrested for violating a municipal ordinance. Under the authority granted by state law,⁴  the City adopted Sioux Falls, S.D., Rev. Ordinances section 1-4(a):

Whenever in this Code or in any ordinance of the City an act is prohibited or is made or declared to be unlawful or an offense or a misdemeanor, or wherever in such Code or ordinance the doing of any act is required or the failure to do any act is declared to be unlawful, and no specific penalty is provided therefor, any person who shall be convicted of any such violation shall be fined not more than one hundred dollars ($100.00), or imprisoned in the city jail or county jail not longer than thirty (30) days, or shall receive both such fine and imprisonment. Each day any violation of this Code or other ordinance continues shall constitute a separate offense.

The City maintains that because sections 38-76 and 38-78 do not expressly provide a penalty these sections incorporate the criminal penalties found in section 1-4(a). The City further contends that the combined workings of these ordinances are consistent with South Dakota law, section 9-30-5, which, in addition to expressly granting the power to make special assessments, permits a municipality to employ any reasonable means necessary to ensure compliance with snow removal ordinances. Under this interpretation the statute implicitly provides municipalities with the power to issue citations and arrest warrants for violation of snow removal ordinances.⁵ 

In its analysis, the district court focused exclusively on South Dakota law section 9-30-5 in finding that the City's snow removal ordinance may not authorize arrests.⁶  We disagree with the district court's conclusion. Having considered the language of section 9-19-3, as well as that of section 9-30-5, we find that Sioux Falls' snow removal ordinance is on its face a reasonable discretionary action taken within the scope of its authority.⁷  South Dakota law, section 9-30-5, does not expressly preclude arrest authority; this section provides municipalities with considerable flexibility in adopting a snow removal ordinance and determining the penalties for violation of that ordinance. The possible penalty proceedings from which to choose are certainly not limited to the State's petty offense procedures. South Dakota law, section 9-19-3, clearly permits Sioux Falls to employ criminal proceedings where a municipal ordinance is violated.

Consequently, Murray's section 1983 claim against the City is barred. As stated in City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S. Ct. 915, 99 L. Ed. 2d 107 (1988), " [t]he city cannot be held liable under Sec. 1983 unless respondent proved the existence of an unconstitutional municipal policy." 108 S. Ct. at 926. The City's official policy at issue in this case is the snow removal ordinance which authorized the arrest of violators.⁸  The power to arrest those who violate this ordinance is authorized by South Dakota law, sections 9-30-5 and 9-19-3. Therefore the district court's determination that the City's snow removal ordinance, sections 38-76 and 38-78, does not authorize the making of arrests is reversed.

With regard to the officers, this court earlier affirmed the district court's finding that probable cause existed for the filing of the complaint upon which Murray's arrest was based. However, as the court held, if the ordinance did not authorize an arrest, "then Murray's arrest was invalid, and perhaps violated his Fourth Amendment rights." Murray v. City of Sioux Falls, No. 86-5083, slip op. at 2 (8th Cir. Dec. 9, 1986), [808 F.2d 841 (table) ]. We hold today for the reasons previously discussed that the ordinance was a valid exercise of the City's authority. However, even if the ordinance were invalid, we agree with the district court that Officers Jensen and Hanson could not reasonably have been expected to know that the ordinance exceeded the authority granted by the State. Qualified immunity is available to municipal officials who perform discretionary functions so long as the conduct of the officials does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Fields v. City of Omaha, 810 F.2d 830, 834 (8th Cir. 1987) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982)). See also Baker v. McCollan, 443 U.S. 137, 145-46, 99 S. Ct. 2689, 2695-96, 61 L. Ed. 2d 433 (1979). Under such circumstances, these officers would be entitled to qualified immunity.

Judgment reversed in part and affirmed in part.