REVISED - March 5, 2001

                      UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT


                                No. 97-10907


                    CHARLES FREEMAN and ROSALYN BROWN,

                                 Plaintiffs-Appellees-Cross-Appellants,

                                       v.

                               CITY OF DALLAS,

                                      Defendant-Appellant-Cross-Appellee.


         Appeal from the United States District Court for the
                      Northern District of Texas

                              February 22, 2001

Before JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, WIENER, BARKSDALE,
EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER and DENNIS,
Circuit Judges.*

EDITH H. JONES, Circuit Judge:

            The City of Dallas served notices on the owners of two

vacant, deteriorated apartment houses, warning them to repair or

demolish the structures.       The owners fought the order according to

City procedures but lost.       After the City tore down the condemned

buildings,    the    owners   filed    suit   in   federal   court   alleging

violations of the Fourth Amendment and the Due Process Clause.              A

divided panel of this court held that although the City procedures

complied with due process, the City must also obtain a pre-


     *
            Chief Judge King did not participate in this decision.
demolition warrant of some sort in order to satisfy the Fourth

Amendment.      This court, sitting en banc, disagrees with the panel

majority’s interpretation of the Fourth Amendment and denies relief

to   the   property      owners.    A   warrant   is   unnecessary   when   a

municipality seizes property that has been declared a nuisance by

means of established police power procedures.

                                        I.

             Between December 1992 and April 1993, Rosalyn Brown

acquired two vacant, eight-unit apartment buildings in Dallas,

Texas located at 2621 and 2611 Meyers Street.              Brown paid $10.00

for the first building and $1.00 for the second, which had suffered

fire   damage    prior    to   purchase.     On   August   11,   1994,   Brown

transferred a one percent undivided interest in both buildings to

her brother, Charles Freeman. The buildings remained vacant during

the entire period of plaintiffs’ ownership.

             Brown intended to rent the apartment units after making

repairs.      To this end, she asked Freeman to be the general

contractor in charge of renovating the apartments.               Freeman was

neither a registered engineer or architect, nor did he possess a

general contractor’s license or trade license from the State of

Texas.     No construction company or crew worked for him.

             In April and July of 1993, inspectors from the Dallas

Department of Housing and Neighborhood Services (the “Department”)

cited the plaintiffs’ two apartment buildings for non-compliance



                                        2
with the City’s Minimum Urban Rehabilitation Standards Code (the

“Code”).     According to the Department’s inspectors, the buildings

together needed nearly $200,000 in repairs to comply with the Code.

When   the   Code      violations   were       not   corrected,          the     Department

referred the matter to the Urban Rehabilitation Standards Board

(“URSB”) and recommended demolition.

             The    URSB   was   established         by    the    City     of    Dallas    to

determine       whether    property    condition           reports       filed     by    city

inspectors identify violations of the City’s building codes.                              The

URSB   comprises        thirty   private        citizen          members        (and    eight

alternates) who are appointed by the Dallas City Council. The URSB

may determine, after a hearing, whether a given structure is an

“urban nuisance” and take various remedial measures.                            The URSB is

authorized by city ordinance to order repairs, receivership, the

closing and vacating of buildings, demolition, and civil penalties

of up to two thousand dollars a day against property owners who

fail to repair or demolish a structure after the board has issued

a valid determination and remedial order.                   DALLAS, TEX., CODE ch. 27,

art. II, § 27-8.

             The URSB functions through hearing panels composed of

members    of    the   URSB.     The   Dallas        City    Code    establishes          the

procedure to be used by the panels.                       At a hearing, “an owner,

lessor, occupant, or lienholder may present witnesses in his own

behalf and is entitled to cross-examine any witnesses appearing



                                           3
against him.”    DALLAS, TEX., CODE ch. 27, art. II, § 27-9(c).   The

decision of the hearing panel is final except that rehearings may

be granted in certain instances.       The code also gives an affected

property owner an absolute right to appeal the panel decision to

state district court.   DALLAS, TEX., CODE ch. 27, art. II,§ 27-9(e).

Under state law, the court considers whether the landowner’s

substantial rights have been prejudiced because the URSB decision

violates constitutional or statutory law; exceeds URSB’s authority;

is based on unlawful procedure or any other error of law; is

unsupported by substantial evidence; or is arbitrary or capricious

or an abuse of discretion.    TEXAS GOV’T CODE § 2001.174(2).

            After receiving the Department’s reports on plaintiffs’

properties, the URSB conducted a title search and mailed a notice

of hearing on each of the properties to the owner of record.1      The

notice announced that the URSB might order demolition to remedy the

Code offenses. It further stated that the property owner would “be

given an opportunity to present evidence and witnesses if so

desired.”

            In preparation for the hearings, Department staffers

briefed the panel of URSB members assigned to decide the fate of


     1
          Freeman did not get notice because he had no interest in
either property at this time.    Brown received a notice on 2621
Meyers Street, the property of which she was the owner of record.
Brown did not receive notice on the 2611 Meyers Street property
because, although she had purchased the property by this date, she
had not yet filed a warranty deed. Instead, the notice on 2611
Meyers Street was sent to the owner of record, Robert Burkhead.

                                   4
the Meyers Street properties. They provided the panel members with

information on the properties, including repair cost estimates, and

accompanied some of them on a tour of the premises.

          Freeman appeared at the hearings, identifying himself as

the “attorney-in-fact for Brown” and as an owner of 2611 and 2621

Meyers Street.   The panel looked at pictures of the structures,

questioned Freeman about his plans for repair, and asked whether he

had the funds for repair.   Freeman testified that he lacked funds

at present and asked for more time to make repairs.     Expressing

doubt about Freeman’s ownership and his ability to finance repairs,

the panel unanimously voted to demolish each apartment building as

an urban nuisance.2

     2
          The Code defines an “urban nuisance” as the following:
                [A] premises or structure that:
                (A) is reasonably dangerous to the physical health
                or safety of an occupant or other person; or
                (B) because of violations of [the Code] . . ., its
                state of disrepair is such that it could reasonably
                cause injury, damage, harm, or inconvenience to a
                considerable portion of the community in the use
                and enjoyment of property, materially interfering
                with the proper use or comfort and enjoyment of
                surrounding property, taking into consideration the
                nature and use of the properties in the area and
                the character of the community in which they are
                situated, which condition would be substantially
                offensive and annoying to persons of ordinary
                sensibilities, tastes, and habits living in the
                community.
          DALLAS, TEX., CODE ch. 27, art. I, § 27-3(23).
     The Code goes on to prescribe with specificity the minimum
structural, health and utility standards whose breach may result in
the declaration of an urban nuisance. Dallas, Tex., Code ch. 27,
Art. III, § 27-11.



                                 5
          Following   the    hearing,   Freeman   signed   notices   of

demolition for both apartment buildings.       He then asked for and

received a rehearing from the URSB.     Two panel members visited the

properties before the rehearings.       They examined the exterior of

the apartment building at 2611 Meyers Street.         At 2621 Meyers

Street, they ran into Freeman.    He showed them repairs he had made

inside that property, and they told him to bring pictures of these

repairs to the rehearings.

          At the rehearing, the Department showed pictures of the

apartment buildings’ exteriors.       In response, Freeman testified

that he thought he could acquire most of the repair materials at

little or no cost.    He further stated that he hoped to finance

repairs through a loan from the City; he had received a commitment

from relatives in the construction business to help him make

repairs if he received a City loan.

          Freeman also submitted pictures of one unit in the 2621

Meyers Street building that he had repaired, and he presented a

list of repair materials that he had already collected. He further

testified that he could renovate each unit at 2621 Meyers Street

for $2000.   Though panel members reacted skeptically and reminded

him of the Department’s repair cost estimates, Freeman did not

inquire about the basis for these estimates nor did he ask to

question the Department officials responsible for them.




                                  6
          The panel again voted to demolish plaintiffs’ buildings.

The vote was unanimous on the 2611 Meyers Street property and was

split five to two on the 2621 Meyers Street property.      Freeman

received a notice of demolition for each property at the end of the

rehearing, and he signed them. The notice advised that the panel’s

decision could be appealed within twenty days to state district

court for review.    Freeman and Brown did not appeal the URSB

decision to state district court.3

          When Brown and Freeman failed to demolish the buildings

within thirty days, the City hired a contractor to do the work.

The two vacant structures were demolished in late December 1994,

and the costs of the demolition were assessed against Freeman and

Brown in the total amount of about $16,000.

          A year and a half later, Freeman and Brown filed suit

against the City of Dallas under 42 U.S.C. § 1983.    They alleged

that the demolition of their apartment buildings without first


     3
          The URSB also sent notice of the order to demolish the
building at 2611 Meyers Street to Freeman and notice of the order
to demolish the building at 2621 Meyers Street to Freeman and
Brown. The notices stated, in part:

     If you do not demolish the structure(s) within the time
     above indicated [30 days], the city will arrange to have
     this work done and the expense of that demolition
     performed under contract with the city will constitute a
     lien on the real property on which the structure(s) were
     located, and that lien will run with the land.

These notices were sent to the same addresses at which Brown and
Freeman had received mail about earlier hearings, but they were
returned as “Unclaimed.”

                                 7
obtaining a judicial warrant constituted an unreasonable seizure in

violation of the Fourth Amendment.             They also alleged that the

URSB’s procedure for condemning and demolishing their apartment

buildings and for imposing liens on the remaining realty denied

them       procedural   due   process   in   violation   of   the   Fifth   and

Fourteenth Amendments.

               Freeman and Brown moved for summary judgment on the

Fourth Amendment claim while the City moved for summary judgment on

all claims.       The district court granted the plaintiffs’ motion on

the Fourth Amendment claim and granted the City’s motion on the Due

Process claims.         Following a one-day trial on damages for the

Fourth Amendment violation, the district court accepted the jury’s

verdict and entered final judgment against the City of Dallas in

the amount of $20,000 plus interest.

               A divided panel of this Court affirmed the district

court’s summary judgment for the property owners with respect to

the Fourth Amendment claim, while also affirming the rejection of

the plaintiffs’ Due Process claims.4              See Freeman v. City of

Dallas, 

(5th Cir. 1999), reh’g en banc granted, 

(5th Cir. 1999).               We granted rehearing en banc to

reconsider the Fourth Amendment ruling.




       4
          This court reinstates the panel opinion concerning the
Due Process claims.

                                         8
                                 II.       DISCUSSION

              The panel majority reasoned toward a violation of the

Fourth Amendment in three steps.                   First, the demolition of the

Freemans’ apartment houses was a “seizure” for Fourth Amendment

purposes.      Second, the seizure had to be preceded by a warrant.

Third,    a   warrantless       seizure,         even    if   it    occurred   following

constitutionally         adequate      local       condemnation        procedures,     is

unreasonable and therefore unconstitutional.                       While we agree that

the City seized the Freemans’ real property for demolition,5 we do

not accede to the panel majority’s inflexible warrant requirement

in   this     context    or    its   supplanting         of     the   Fourth   Amendment

reasonableness inquiry with such a requirement.                        The text of the

Fourth Amendment conspicuously fails to require a warrant for every

government      search    or    seizure.           And    the      controlling    caselaw

emphasizes      reasonableness,        a    balancing         of   governmental    versus

private interests, as the touchstone of the Fourth Amendment.

              Since the relevant facts are undisputed, summary judgment

was granted on the merits as a matter of law, see Fed. R. Civ. P.


      5
          “Seizure” of property occurs when there is some
meaningful interference with an individual’s possessory interests
in that property, United States v. Jacobsen, 

, 113, 

, 1656 (1984), and a “seizure” may occur in both civil
and criminal contexts. There can be no question that the city’s
actions against the Freeman’s apartment buildings constituted a
“seizure”. See Soldal v. Cook County, Ill., 

, 62 & n.7,

, 544 & n.7 (1992), (holding that the forcible
removal of a mobile home, leaving the owners dispossessed,
constituted a “seizure” under the Fourth Amendment).


                                             9
56(c).   We review the district court’s decision de novo.        See

United States v. Johnson, 

, 1063 (5th Cir. 1998).

          The Fourth Amendment, made applicable to the States by

the Fourteenth Amendment, Ker v. California, 

, 30, 83 S.

Ct. 1623, 1628 (1963), declares:

          The right of the people to be secure in their
          persons, houses, papers, and effects, against
          unreasonable searches and seizures, shall not
          be violated, and no Warrants shall issue, but
          upon probable cause, supported by Oath or
          affirmation, and particularly describing the
          place to be searched, and the persons or
          things to be seized.

This provision contains two separate and independent clauses.    The

first proscribes “unreasonable searches and seizures,” and the

second prescribes the narrow conditions under which a warrant may

issue. Nothing in the text suggests that warrants are required for

every search or seizure, nor is the existence of a warrant a sine

qua non for a reasonable search or seizure.   While the text plainly

mandates reasonableness in the seizure, it does not instruct

whether a warrant is necessary to ensure the reasonableness of the

City’s demolition order.

          To determine the necessity of a warrant here, we might

consider common law at the time the Fourth Amendment was adopted,

see Wyoming v. Houghton, 

, 299, 

, 1300

(1999), but, contrary to plaintiffs’ assertions, the quest would be

fruitless.   Confusing the demands of due process with the warrant

clause, plaintiffs’ historical argument observes that, at common

                                10
law, apart from cases where a nuisance posing an imminent danger

could be summarily abated by self-help, structures were ordinarily

determined to be nuisances in criminal or civil abatement actions.

Because the courts at the time of the framing of the Constitution

oversaw nuisance law, plaintiffs assume that they must continue

constitutionally to play a role under the aegis of the Warrant

Clause. There are two serious flaws in this argument.                 First, none

of   the   cases   cited     by   the   plaintiffs    deals    with    warrants.6

Instead, cases from the nineteenth century involved judicial review

to   determine     whether    structures     or   activities    were    in   fact

injurious    under   state    and   local    police   power.7     Other      cases

evaluated nuisance determinations by the standards of procedural


      6
          The    federal government lacked authority over nuisances at
and after the    time of the framing, and the Fourth Amendment was not
first applied    to the states until 1961. Mapp v. Ohio, 

,
646-47, 81 S.    Ct. 1684, 1686-87 (1961).
      7
          See Yates v. Milwaukee, 

, 505, 

(1870)(“It is a doctrine not to be tolerated in this country, that
a municipal corporation, without any general laws either of the
city or of the State, within which a given structure can be shown
to be a nuisance, can, by its mere declaration that it is one,
subject it to removal by any person supposed to be aggrieved, or
even by the city itself.”); Hennessy v. St. Paul, 

, 566
(C.C. Minn. 1889)(“[U]nless a nuisance, as defined by the common
law or by statute, exists, the act of the common council cannot
make it one by a mere resolution. Such a doctrine might place the
property of the people, no matter what in fact might be its real
condition and character, at the disposal of the common council,
without compensation.”); Underwood v. Green, 

(N.Y.
1870); J.E. Macy, Annotation, Constitutional Rights of Owner as
Against Destruction of Building by Public Authorities, 

, *8 (1950) (“[N]either at common law nor under such express
power can it, by its mere declaration that specified property is a
nuisance, make it one when in fact it is not.”).

                                        11
and substantive due process.8       Whatever these cases may imply about

the historical view of the reasonableness of particular nuisance

decisions, they say nothing about employing the Warrant Clause to

review those decisions.

               Second, the plaintiffs theorize that because nuisance

determinations historically involved judicial procedures, such

determinations can only be “reasonable” today if they are subject

to plenary court review. This theory is fundamentally at odds with

the        development   of   governmental     administrative      agencies.

Characteristically, agency decisions are deferred to by the courts.

Plaintiffs apparently seek, however, to broaden courts’ involvement

in    nuisance    decision-making   contrary   both   to   the   deferential


       8
           See, e.g., Lawton v. Steele,152 U.S. 133, 141, 14 S.
Ct. 499, 502 (1894) (“If the property were of great value . . . it
would be putting a dangerous power in the hands of a custom officer
to permit him to sell or destroy it as a public nuisance, and the
owner would have good reason to complain of such act as depriving
him of his property without due process of law.”); Mugler v.
Kansas, 

, 

, 301 (1887)(“The exercise of the
police power by the destruction of property which is itself a
public nuisance, or the prohibition of its use in a particular way,
whereby its value becomes depreciated, is very different from
taking property for public use, or from depriving a person of his
property without due process of law.”); Our House v. The State, 

, 

, *2 (Iowa 1853)(holding that a law
declaring “dram shops” to be public nuisances, authorizing their
abatement, and establishing certain procedures for notice and a
hearing “does not deprive a person of his property without due
process of law”). The notion of substantive due process survives
in challenges to municipal zoning and nuisance decisions, as this
court has recently held. John Corp. v. City of Houston, 

, 581-86 (5th Cir. 2000) (allegation that city deprived
landowners    of    property   by    allowing   demolition    under
unconstitutionally vague ordinance states cognizable substantive
due process claim).

                                     12
standard of judicial review of administrative decisions and to the

broad standards for issuance of warrants.          None of the decisions

produced by plaintiffs justifies reverting to the 18th century

judicial role in nuisance abatement.            This court’s comment in

rejecting, over twenty-five years ago, a similar argument for

reinstituting common law judicial review of nuisance determinations

bears repeating:

      [F]or the purposes of marking the limits of federal
      constitutional due process the common law of nuisance
      must   be   considered  a   jurisprudential artifact,
      interesting but not controlling.

Traylor v. City of Amarillo, 

, 1159 (5th Cir. 1974)

(Goldberg, J.). Even more emphatically, the common law of nuisance

affords no basis for creating a per se judicial warrant requirement

that is redundant of procedural and substantive safeguards inherent

in   modern    administrative   law   and   explicit   municipal   nuisance

ordinances.

              Where history yields no firm answer, a search or seizure

must be evaluated under traditional standards of reasonableness.

, 119 S. Ct. at 1300.          There is no Supreme

Court caselaw directly on point. Still, the Court has expressed an

overarching test of reasonableness that is antagonistic to an

inflexible warrant requirement.       Thus, the reasonableness standard

is one that reflects a “‘careful balancing of governmental and

private interests.’”      

, 113 S. Ct. at 549,

(quoting New Jersey v. T.L.O., 

, 341, 

,


                                      13
742 (1985)).    More recently, the Court reiterated, “as the text of

the   Fourth   Amendment    indicates,     the   ultimate   measure    of   the

constitutionality     of    a   government   search   is    reasonableness.”

Vernonia School Dist. 47J v. Acton, 

, 652, 

, 2390 (1995).9        Vernonia also clearly distinguishes between

the   reasonableness       of   government   searches      and   the   warrant

requirement:

            Where   a   search   is   undertaken   by   law
            enforcement officials to discover evidence of
            criminal wrongdoing, this Court has said that
            reasonableness     generally    requires    the
            obtaining of a judicial warrant.       Warrants
            cannot be issued, of course, without the
            showing of probable cause required by the
            Warrant Clause. But a warrant is not required
            to establish the reasonableness of all
            government searches; and when a warrant is not
            required (and the Warrant Clause therefore not
            applicable), probable cause is not invariably
            required either.10

      9
          See also City of Indianapolis v. Edmond, 

,
4451 (2000) (“The Fourth Amendment requires that searches and
seizures be reasonable.”); Ohio v. Robinette, 

, 39, 

, 421 (1996)(“the touchstone of the Fourth Amendment is
reasonableness”) (internal quotations omitted); Whren v. United
States, 

, 817, 

, 1776 (1996)(“It is of
course true that in principle every Fourth Amendment case, since it
turns upon a reasonableness determination, involves a balancing of
all relevant factors.”)(quotations omitted); Camara v. Municipal
Court of San Francisco, 

, 

, 

(1967)(“[R]easonableness is still the ultimate standard [under the
Fourth Amendment].”); Carroll v. United States, 

, 147,

, 283, 

(1925)(“The Fourth Amendment does
not denounce all searches and seizures, but only such as are
unreasonable.”).
      10
          The Court goes on in the same paragraph of Vernonia to
state that:

      A    search   unsupported     by     probable   cause      can   be

                                      14


, 115 S. Ct. at 2390-91 (emphasis added)

(citations    omitted).     Under   these   decisions,    the   fundamental

inquiry,     which   we   will   address    in   detail   later,     is   the

reasonableness of the City’s seizure.

           The property owners contend, however, and this court’s

panel opinion held that, the seizure of their property was per se

unreasonable unless the City obtained a warrant to enforce its

demolition order.     In support of this position, plaintiffs and the

panel majority rely on a handful of cases.            Their reliance is

misplaced.

           In companion cases, the Court did extend a warrant

requirement of a sort to administrative inspections of private

homes and business properties, the purpose of which was to verify

compliance with municipal health and safety codes.                 Camara v.

Municipal Court of San Francisco, 

, 

(1967); See v. City of Seattle, 

, 

(1967).    Evidence of code violations uncovered by the warrantless

searches     might lead to fines or other penalties.        Balancing the

need for searches against the property owners’ privacy, the Court


     constitutional, we have said, ‘when special needs, beyond
     the normal need for law enforcement, make the warrant and
     probable-cause requirement 

, 115 S. Ct. at 2391. By its terms, and by the
Court’s further explanation, the “special needs” caveat tends to
expand rather than narrow exceptions to the warrant requirement.
Further, “special needs” are relevant to relaxation of the
probable-cause basis for a government search for evidence. Here,
however, there is probable cause for the City’s seizure.

                                    15
concluded that warrants were necessary to check the unfettered

discretion code enforcement officers had in the field.                    A property

owner had “no way of knowing whether enforcement of the municipal

code involved requires inspection of his premises, no way of

knowing the lawful limits of the inspector’s power to search, and

no way of knowing whether the inspector himself is acting under

proper authorization.”              

.          Only with the

protection of an administrative warrant would property owners avoid

capricious or overbroad searches.

               Camara    and    See   are    distinguishable       from   this   case.

First,      since       searches      to     gather    evidence     of    regulatory

noncompliance invade citizens’ privacy “without particularized

suspicion of misconduct,”11 they need only satisfy standards of

administrative reasonableness.                Marshall v. Barlow’s, Inc., 

,    320,    98     S.   Ct.    1816,   1824   (1978)   (requiring     only

administrative reasonableness for regulatory searches); Griffin v.

Wisconsin, 

, 877 n.4, 

, 3170 n.4 (1987)

(requiring       only    administrative           reasonableness    for   regulatory

searches).       Here, the evidence of municipal              code violations had

already been obtained by means unchallenged by the landowners, and

the administrative adjudication of noncompliance has occurred. The

landowners availed themselves of two hearings resulting in a

decision of the seven-member panel of the URSB, and after these

       11
          City of Indianapolis v. Edmond, ____ U.S. ____, 121 S.
Ct. 447, 451 (2000).

                                             16
proceedings, there remained         a possibility of state court judicial

review.      What is sought by these plaintiffs is not protection

against an unregulated search for evidence of wrongdoing, but

additional protection to forestall the result of already-determined

wrongdoing.

             Second, the URSB, unlike the field code inspectors in

Camara and See, could not operate with unbridled discretion.                    The

municipal       code   specifies   grounds    on   which   a   building   may    be

determined to be a public nuisance.12              The property owners’ right

to     defend    the    case   against    their    apartment     buildings      was

procedurally secure. Only by impugning the institutional integrity

of the URSB can one arrive at the conclusion, unsupported in this

record,     that   it   exercised   standardless      discretion    and   either

arbitrarily enforced the municipal code or failed to consider the

property owners’ evidence.          The nature of the URSB’s adjudicative

function13 imposes more numerous and more transparent constraints

on the URSB than did the evidence-gathering function performed by

field officers randomly inspecting private buildings in Camara and

See.




       12
             See supra note 2.

       13
          The Texas Local Government Code describes the agencies
like the URSB as exercising “Quasi Judicial Enforcement of Health
and Safety ordinances.” Subchapter C, Texas Local Gov’t. Code,
Tit. 2, Subtitle D, Ch. 54 (§§ 54.032-54.042).

                                         17
             Third, it is hard to understand what protection the

Camara-approved administrative warrant would provide for these

plaintiffs.       Camara     relaxed   the     probable   cause     standard      for

issuance     of   such     warrants,    requiring     only    a    more    general

determination that “legislative or administrative standards for

conducting an area inspection” be reasonable.                Camara, 387 U.S at

.             Camara-style administrative search

warrants need not be issued by judicial officers.                  See Griffin v.

Wisconsin, 

, 877 and n.5, 

, 3170 and n.5

(1987).    Plaintiffs also admit that administrative search warrants

may   be   issued     ex   parte.      While    the   Court’s      standards      may

meaningfully constrain officials who enter private property for

inspection purposes, they are obviously ill-suited to regulate

completed administrative condemnation proceedings. If a warrant of

some type is to be imposed in lieu of state judicial review, it

must be on terms different from the Camara warrants in order to

assist these landowners.           But if the terms are different, then a

different justification is necessary.

             Camara    and   See    thus     doubly   fail    to    support       the

plaintiffs’ argument. Those cases imply either that seizure of the

apartment buildings was preceded by reasonable, rigorous procedures

that protected the property owners’ rights, or they mandate an ex

parte,     possibly    nonjudicial     administrative        warrant      shorn    of

probable cause, which does the property owners no good.                       While



                                        18
useful in their sphere, these cases fail to support a warrant

following a completed nuisance abatement procedure.

            The landowners have also cited Soldal in support of their

warrant argument, but Soldal is not even a warrant case.    The only

issue decided by Soldal was whether the nonjudicial eviction-by-

relocation of the tenants’ mobile home, with sheriffs’ deputies

assisting, constituted a seizure within the Fourth Amendment.      The

Court refused to consider whether the seizure was constitutionally

reasonable, as it stated:

       Whether the [4th] Amendment was in fact violated is, of
       course, a different question that requires determining if
       the seizure was reasonable. That inquiry entails the
       weighing of various factors and is not before us.

, 113 S. Ct. at 543.

            In the final case offered by plaintiffs, the Supreme

Court held that the IRS must obtain a warrant to search private

premises to locate property that may be seized to enforce a valid

federal tax lien.   GM Leasing Corp. v. United States, 

,

(1977). More significantly for present purposes, the

Court distinguished a search for unidentified nonexempt property

from a seizure, and it rejected requiring a warrant for seizures of

the taxpayer’s vehicles from property where the seizures “did not

involve any invasion of 

, 97 S. Ct. at

628.   Similarly in this case, the plaintiffs retained little or no

reasonable expectation of privacy in their dilapidated, uninhabited

rental properties after the URSB had entered orders declaring them


                                  19
an urban nuisance, and the owners had failed to abate the code

violations.

           GM     Leasing     also    states    that     where       seizures   are

sustainable under the Due Process Clause, constitutional analysis

of the same acts under the Fourth Amendment “is similar and yields

a like result.”     

     Texas’s administrative condemnation

procedures have withstood due process challenge.                 Traylor v. City

of Amarillo, 

(5th Cir. 1974).               Far from supporting

the plaintiffs, GM Leasing thus forecasts, even if it does not

compel, that a balancing of the public and private interests at

stake will favor the public interest in nuisance abatement after

the conclusion of adequate administrative proceedings.

           Not only does plaintiffs’ theory lack support in Supreme

Court caselaw, but it enjoys only minority support among the

federal circuits.       The Eighth and Sixth Circuits have found no

Fourth Amendment bar to warrantless condemnation and eviction

proceedings, where satisfactory administrative procedures preceded

them.   Samuels v. Meriwether, 

(8th Cir. 1996); Hroch

v. City of Omaha, 

(8th Cir. 1993); Flatford v. City of

Monroe, 

, 170 (6th Cir. 1994).                On the other hand, a

divided   panel    of   the   Ninth   Circuit    held    that    a    warrant   was

necessary before city officials could enter private property to

seize previously-condemned automobiles.            Conner v. City of Santa

Ana, 

, 1495 (9th Cir. 1990).              We disagree with Conner



                                       20
for reasons stated in Judge Trott’s 

,

and based on our evaluation of Fourth Amendment reasonableness.

           Although the City did not have to obtain a warrant to

effectuate      a    valid   seizure    and    demolition       of    the   nuisance

structures,         the   fundamental       Fourth     Amendment      question    of

reasonableness remains, a question decided by balancing the public

and private interests at stake.

           As       the   Supreme   Court    has     acknowledged,     “the   public

interest demands that all dangerous conditions be prevented or

abated.”   

, 

.                   Regulation of

nuisance properties is at the heart of the municipal police power.14

It is eminently reasonable for a city to prescribe minimum property

maintenance     standards      to   protect    the     public   and    to   maintain

adjacent land values.          Nevertheless, a city may not arbitrarily

enter abatement orders or declare the existence of nuisances with



     14
          While the Supreme Court has not specifically defined the
scope of the police power, it has reaffirmed the “classic
statement” of the rule:

     ‘To justify the State in . . . interposing its authority
     in behalf of the public, it must appear, first, that the
     interests of the public . . . require such interference;
     and, second, that the means are reasonably necessary for
     the accomplishment of the purpose, and not unduly
     oppressive upon individuals.’    Even this rule is not
     applied with strict precision, for this Court has often
     said that ‘debatable questions as to reasonableness are
     not for the courts but for the legislature. . . .’

Goldblatt v. Town of Hempstead, 

, 594-95, 

, 990 (1962)(citations omitted).

                                        21
no underlying standards.       Texas law forbids such actions,15 and the

City’s    ordinance      exemplifies     the    state   statutes’    criteria.

Contrary to the landowners’ argument, Dallas’s minimum standards

for property owners assure structural soundness, public health and

safety and    human   habitability.          The   Dallas   ordinance    is   not

concerned with aesthetic or non-functional values.              The ordinance

falls well within the City’s         police power and thus within a sphere

that courts have traditionally been reluctant to invade.

           Prescription of standards necessitates their enforcement,

and it is also reasonable that nuisance abatement be one of the

enforcement mechanisms available to the City.               While abatement is

permissible, however, the City ordinance affords property owners

the opportunity to contest the determination of non-compliance, to

repair their      property,   or   to    seek   other   remedies.       Dallas’s

procedures include reasonable notice to and time limits upon

landowners’    actions,     multiple     hearing    possibilities,      flexible

remedies, and judicial review in state court under typical criteria

for review of administrative actions.16                 That these standards

comport    with    due     process      suggests    the     Fourth   Amendment

reasonableness of the URSB’s final remedial orders.


     15
           See generally, Tex. Loc. Govt. Code, Tit. 2, Subtitle D,
ch. 54.
     16
          Indeed, the grounds for state court judicial review are
nearly identical to those standards employed historically by courts
in reviewing nuisance decisions, i.e. the decisions on which
plaintiffs seek to build the edifice of their warrant requirement.

                                        22
           With regard to the landowners’ interests, the Fourth

Amendment protects only those expectations of privacy that society

recognizes as “legitimate”.         New Jersey v. T.L.O., 

,

338, 

, 741 (1984).       “What expectations are legitimate

varies, of course, with context . . . [and] . . . may depend upon

the individual’s legal relationship with the State”. 

, 115 S. Ct. at 2391.              Because the Dallas nuisance

standards are straightforward and the administrative procedure is

adequate, these property owners’ expectation of privacy in the

nuisance structures after the remedial orders became final was

severely   diminished.        As    vacant    commercial    properties,       the

structures    were    not   subject   to     the   same   degree   of    privacy

protection as non-business property.           New York v. Burger, 

, 700, 

, 2642 (1987); O’Connor v. Ortega, 

, 725, 

, 1501 (1987).               Further, nearly a

year had     passed   since   the   plaintiffs     were   informed      of   their

structures’ non-compliance.           While they did defend themselves

before the URSB, they made no significant progress in remedying

violations whose total repair cost was nearly $200,000.                  Whereas

the landowners in Soldal were the victims of non-judicial eviction

without prior notice, these plaintiffs had ample notice and a full

panoply of administrative remedies.                Finally, since the rent

properties were uninhabited, the demolition, unlike the eviction

carried out in Soldal, did not invade anyone’s personal privacy.



                                      23
               Requiring an administrative warrant of some sort after

the URSB proceedings would not have enhanced the landowners’

security or privacy.        A Camara warrant could be sought ex parte; it

could     be    obtained    solely    on     the   basis   of   the     completed

administrative record; no requirements of pre- or post-warrant

notification of the City’s intended actions were necessary. If the

purpose of a warrant is to obtain some neutral review of the URSB

orders, this procedure is less protective of the landowners than

existing judicial review in state court.

               The ultimate test of reasonableness is fulfilled in this

case by the City’s adherence to its ordinances and procedures as a

prelude    to    ordering    the   landowners      to   abate   their    nuisance

structures.17         The    Supreme       Court   originally     extended     an

administrative warrant requirement to civil investigations because

“the basic purpose of [the Fourth] Amendment . . . is to safeguard

the privacy and security of individuals against arbitrary invasions

by governmental officials.”          

, 87 S. Ct. at



     17
          In reaching this conclusion, we do not ignore Soldal’s
mandate that a particular government action may implicate more than
one constitutional provision. 

, 113 S. Ct.
at 538. A particular nuisance determination might be reviewable
under the Takings Clause or Substantive Due Process as well as the
Fourth Amendment or Procedural Due Process standards. John Corp.
v. City of Houston, 

(5th Cir. 2000). But the Fourth
Amendment reasonableness of a seizure and demolition of nuisance
property will ordinarily be established when the substantive and
procedural safeguards inherent in state and municipal property
standards ordinances have been fulfilled. See 

.

                                        24
1730 (emphasis added); see also 

, 98 S.

Ct. at 1820. Whatever else the City’s enforcement of its municipal

habitation code might be, it is sufficiently hedged about by

published standards, quasi-judicial administrative proceedings, and

flexible remedies that it is not arbitrary.     In the context of

reviewing civil administrative and regulatory enforcement of laws

enacted pursuant to the traditional police power, Fourth Amendment

reasonableness means non-arbitrariness.   The Fourth Amendment was

not violated here.18

                            CONCLUSION

          For all these reasons, we conclude that the seizure and

demolition of the plaintiffs’ apartment buildings, after those

structures were condemned according to City ordinance and state

law, were reasonable under the Fourth Amendment.      The judgment

against the City is REVERSED.




     18
           Cf. 

, 113 S. Ct. at 549 (“Assuming
. . . that the [evicting] officers were acting pursuant to a court
order . . . a showing of unreasonableness would be a laborious task
indeed.”). Likewise, we believe a showing of unreasonableness in
the face of the City’s adherence to its ordinance is a “laborious
task indeed.”

                                25
DENNIS, Circuit Judge, with whom WIENER, BENAVIDES and STEWART,

Circuit Judges, join in Part I only, dissenting:

     The en banc majority reaches the conclusion that, while

binding Supreme Court precedent interpreting the Fourth Amendment’s

proscription of unreasonable searches would clearly require the

URSB to secure a warrant from a neutral judicial officer to conduct

an inspection of the two apartment buildings in the absence of

consent    or    exigent       circumstances,     the   Fourth     Amendment’s

proscription of unreasonable seizures, as illumined by the same and

additional Supreme Court precedent, does not require the URSB to

secure    such   a   warrant    before    demolishing   the    same    apartment

buildings.       Unable   to    square   this   anomalous     result   with   the

language of the Fourth Amendment or Supreme Court jurisprudence,

I dissent.

                            I. FOURTH AMENDMENT

                     A.   Camara, Soldal, and Freeman

     The Freeman panel majority holding that the URSB violated the

owners’ Fourth Amendment rights correctly follows the Supreme

Court’s Fourth Amendment decisions in Soldal v. Cook County, Ill.,

(1992), and Camara v. Mun. Court of San Francisco, 

(1967).

     In Frank v. Maryland, 

(1959) (5-4 decision),

overruled by 

(1967), the Court upheld, by

a five-to-four vote, a state court conviction of a homeowner who


                                         26
refused to permit a municipal health inspector to enter and inspect

his premises without a search warrant.       In his majority opinion,

Justice Frankfurter suggested that the individual and his private

property are fully protected by the Fourth Amendment only when the

individual is suspected of criminal behavior, and that a warrant is

not required for an administrative inspection because the “power

[to inspect dwellings to maintain community health] would be

greatly hobbled by the blanket requirement of the safeguards

necessary for a search of evidence of criminal acts.”       

     In 

, the Court expressly overruled

Frank v. Maryland, holding that under the Fourth Amendment a lessee

of the ground floor of an apartment building had a constitutional

right to insist that San Francisco Department of Public Health

Housing Code inspectors obtain a judicial warrant to inspect his

premises, and that he could not be constitutionally convicted for

refusal to consent to the inspection.    The Dallas URSB advances the

same “public necessity” arguments in support of warrantless, non-

exigent seizures and destruction of private property that the Court

firmly   rejected   as   insufficient   to   uphold   San   Francisco’s

warrantless, non-exigent housing code inspections in Camara.        San

Francisco argued that (i) the ordinances authorizing inspections

are hedged with safeguards and the inspector’s decision to enter

must comply with the standard of reasonableness even if he may

enter without a warrant, 

(ii) the warrant process could



                                  27
not function effectively in this field, 

and (iii) the

public interest demands warrantless administrative searches as the

only effective means of enforcing minimum fire, housing, and

sanitation standards, 

         As Justice White, writing for

the Camara majority, explained:

          In our opinion, these arguments unduly discount the
     purposes behind the warrant machinery contemplated by the
     Fourth Amendment.      Under the present system, when the
     inspector demands entry, the occupant has no way of
     knowing   whether   enforcement         of   the    municipal     code
     involved requires inspection of his premises, no way of
     knowing the lawful limits of the inspector’s power to
     search, and no way of knowing whether the inspector
     himself is acting under proper authorization.              These are
     questions which may be reviewed by a neutral magistrate
     without any reassessment of the basic agency decision to
     canvass an area. . . .      We simply cannot say that the
     protections provided by the warrant procedure are not
     needed in this context; broad statutory safeguards are no
     substitute for individualized review, particularly when
     those safeguards may only be invoked at the risk of a
     criminal penalty.


          . . . It has nowhere been urged that fire, health,
     and housing code inspection programs could not achieve
     their goals within the confines of a reasonable warrant
     requirement.   Thus,   we   do    not    find      the   public   need
     argument dispositive.


          In summary, we hold that administrative searches of
     the kind at issue here are significant intrusions upon

                                      28
     the interests protected by the Fourth Amendment, that
     such searches when authorized and conducted without a
     warrant procedure lack the traditional safeguards which
     the Fourth Amendment guarantees to the individual, and
     that the reasons put forth in Frank v. State of Maryland
     and   in    other      cases   for   upholding    these     warrantless
     searches are insufficient to justify so substantial a
     weakening of the Fourth Amendment’s protections.

     Thus, Camara held that, in the absence of consent or an

emergency situation, the Fourth Amendment requires that a warrant

be issued by a judicial officer before a government entity may

inspect private property to enforce minimum health and safety

standards for the prevention of “fires and epidemics” or “unsightly

conditions adversely affect[ing] the economic values of neighboring

structures.”         

535, & 539-40.

     In the second part of its opinion, the Court in Camara

discussed the type of “probable cause” required for a warrant to

enter and inspect private property.               The Court concluded that “‘a

health official need [not] show the same kind of proof to a

magistrate      as    one   must    who   would   search   for    the   fruits   or

instrumentalities of crime.’”             

(quoting 

) (Douglas, J., dissenting)).               Instead, the satisfaction of

reasonable legislative or administrative standards for inspections

may be used to show “probable cause,” such as the passage of time,

the nature of the buildings, the condition of the entire area, or



                                           29
other factors not necessarily dependent upon specific knowledge of

the condition of a particular dwelling. See 

still the ultimate standard.      If a valid public interest

justifies the intrusion contemplated, then there is probable cause

to issue a suitably restricted warrant.”   

     In 

, the Court held that the presence of

deputy sheriffs for the purpose of forestalling the Soldal family’s

resistance while a trailer park operator seized and removed the

family’s house trailer from the park, without a warrant, eviction

judgment, other judicial order, or exigent circumstances, clearly

implicated the Soldals’ Fourth Amendment rights.   In an unanimous

opinion by Justice White, the Court rejected the Seventh Circuit’s

narrow reading of the Amendment, which the Circuit construed as

safeguarding only privacy and liberty interests while leaving

unprotected possessory interests when neither privacy nor liberty

is at stake.   

  The Court held that “[t]he Amendment

protects the people from unreasonable searches and seizures of

‘their persons, houses, papers, and effects.’ This language surely

cuts against the novel holding below, and our cases unmistakably

hold that the Amendment protects property as well as privacy.”   

See v. City of Seattle, 

(1967), decided the
same day as Camara, the Court held that the Fourth Amendment
forbids warrantless inspections of commercial structures as well as
private residences. “[T]he basic component of a reasonable search
under the Fourth Amendment–that it not be enforced without a
suitable warrant procedure–is applicable in this context, as in
others, to business as well as to residential premises.” 

                                30
The Court pointed to its decisions explaining that a “seizure” of

property occurs when “‘there is some meaningful interference with

an individual’s possessory interests in that property,’” 

(quoting United States v. Jacobsen, 

, 113 (1984)), and

concluded: “We fail to see how being unceremoniously dispossessed

of one’s home in the manner alleged to have occurred here can be

viewed as anything but a seizure invoking the protection of the

Fourth Amendment.”   

in Soldal stopped short of deciding whether the

seizure was a violation of the Fourth Amendment because the Seventh

Circuit had failed to reach that issue due to its incorrect

decision that there had been no “seizure.”    A careful reading of

the Court’s unanimous Soldal opinion, however, strongly suggests

that a violation had occurred under Fourth Amendment law because

(1) the dispossession of the Soldals of their trailer home was a

“seizure” because it was a “meaningful interference” with their

possessory interest, 

, not an insignificant interference

associated with a “garden-variety” landlord-tenant or commercial

dispute, 

(2) the deputies were acting under color of

state law in assisting in the seizure, 

n.6 & 71; (3) the

officers were not acting pursuant to a warrant or other judicial

order, 

and 71; (4) there was no probable cause to

associate the seized property with criminal activity, 

                                31
and (5) there was no emergency situation because the seizure could

have “properly awaited the state court’s judgment,” 

     The     Court   noted   that   the    Seventh   Circuit   had   correctly

acknowledged that, under the Supreme Court’s precedents, the Fourth

Amendment’s protection applies in the civil as well as the criminal

context.     

     But the Supreme Court concluded that the

Circuit had erred when it seemingly construed the Amendment to

protect only against seizures that are the outcome of a search.

   “[O]ur cases are to the contrary and hold that seizures

of property are subject to Fourth Amendment scrutiny even though no

search within the meaning of the Amendment has taken place.”              

Court explained that the Seventh Circuit’s construction

of the Fourth Amendment to protect only against seizures that are

the outcome of a search is at odds with the Supreme Court’s plain-

view cases in which seizures of property are subject to Fourth

Amendment scrutiny even though no search within the meaning of the

Amendment has taken place.          

(citing United States v.

; United States v. Place, 

,

706-07 (1983); Cardwell v. Lewis, 

, 588-89 (1974)).

“For the plain-view cases clearly state that, notwithstanding the

absence of any interference with privacy, seizures of effects that

are not authorized by warrant are reasonable only because there is

probable cause to associate the property with criminal activity.”

                                      32
    Significantly, the Court also made it clear that the Fourth

Amendment protections are triggered when a government entity seizes

a building to enforce compliance with housing regulations, stating:

     In our view, the reason why an officer might enter a
     house or effectuate a seizure is wholly irrelevant to the
     threshold question whether the Amendment applies. What
     matters is the intrusion on the people’s security from
     governmental interference.           Therefore, the right against
     unreasonable seizures would be no less transgressed if
     the seizure of the house was undertaken to collect
     evidence, verify compliance with a housing regulation,
     effect an eviction by the police, or on a whim, for no
     reason at all.      As we have observed on more than one
     occasion,   it    would   be    “anomalous        to     say   that   the
     individual and his private property are fully protected
     by the Fourth Amendment only when the individual is
     suspected of criminal behavior.”

(quoting 

).20

     Finally, the Court in Soldal characterized as “exaggerated”

the fears of the Seventh Circuit and Cook County that applying the

Fourth Amendment in this context will federalize areas of law

traditionally    the   concern      of        the   states,    such   as   routine

     20
       See also United States v. 

n.28
(relied on prominently in Soldal, in which the Court issued the
following caveat: “Of course, where more substantial invasions
[than taking a trace of powder for a chemical test] of
constitutionally protected interests are involved, a warrantless
search or seizure is unreasonable in the absence of exigent
circumstances.” (citing Steagald v. United States, 

(1981); Payton v. New York, 

(1980); Dunaway v. New
York, 

(1979); United States v. Chadwick, 

(1977))).

                                         33
repossessions, negligent actions of public employees that interfere

with individuals’ right to enjoy their homes, and the like.            

  The Court’s opinion expressly or impliedly indicates several

reasons for this conclusion: (1) activities by state actors such as

repossessions or attachments that involve entry into the home,

intrusion on individuals’ privacy, or interference with their

liberty, have long been recognized as implicating Fourth Amendment

rights; (2) if the state action does not involve privacy or liberty

interests,“‘reasonableness is still the ultimate standard[. If a

valid public interest justifies the intrusion contemplated, then

there is probable cause to issue a suitably restricted search

warrant.]’”     

387 U.S. at 539) (bracketed

material added.    See 

).             Thus, generally

speaking, a state officer will not violate the Fourth Amendment

when his acts under color of law are (a) pursuant to a warrant or

other   judicial   or   court    order,     see   id.;   (b)   in   emergency

situations, see 

; or (c) insignificant

interferences   associated      with    “garden   variety”     commercial   or

landlord-tenant disputes, 

, rather than “some

meaningful interference with an individual’s possessory interests

in . . . property.”     

(quoting 

).

For these reasons, it is evident that, if the Court in Soldal had

been required to reach the issue, it would have concluded that the

seizure in which the Soldals were “unceremoniously dispossessed” of



                                       34
their trailer home, without a warrant, eviction judgment, or other

judicial    order,      and   in    the      absence   of    any   emergency,    was   a

violation of the Soldals’ Fourth Amendment rights.21

             Correspondingly,             the      Dallas    URSB’s    seizure     and

destruction        of   the   private         property      owners’   edifices    were

“meaningful interferences” with their possessory interests in their

buildings, not a “garden-variety” commercial or landlord-tenant

controversy.       On the contrary, it was a seizure and destruction of

private property that was at least as invasive as the removal of a

house trailer from a trailer park or the seizure of a building

“undertaken to collect evidence, verify compliance with a housing

regulation, effect an eviction by the police, or on a whim, for no

reason at all.”           

.                  Consequently, the

administrative seizures and demolitions by the URSB at issue in the

present case were significant intrusions upon the interests of

private property owners protected by the Fourth Amendment, and such

seizures and demolitions by the URSB, a government entity acting

under color of state law, not pursuant to a judicial warrant or

court     order,    and   not      in   an      emergency    situation,   are    clear



     21
       On remand, in light of the Supreme Court’s decision, the
district court concluded that the defendants were not entitled to
qualified immunity. “Because we determine that plaintiffs’
allegations support an inference that the defendants were aware of
circumstances making their actions unreasonable, and hence,
illegal, we refuse to dismiss the action.” Soldal v. County of
Cook, No. 88C7654, 

, *5 n.1 (N.D. Ill. June 10,
1993).

                                              35
violations of the Fourth and Fourteenth Amendments.                  See 

; 

.

B. This Court Is Bound By Camara and See, Not Frank v. Maryland

      A Federal Court of Appeals is bound by the decisions of the

Supreme Court, even if the intermediate appellate judges think that

a Supreme Court decision is unsound or in error.                 See Thurston

Motor Lines, Inc. v. Jordan K. Rand, Ltd., 

, 535

(1983); Hutto v. Davis, 

, 375 (1982); Jaffree v.

Wallace, 

, 1532-33 (11th Cir. 1983)(citing and quoting

Stell v. Savannah-Chatam County Bd. of Educ., 

, 61 (5th

Cir. 1964), overruled in part on other grounds by United States v.

Jefferson County Bd. of Educ., 

(1967)); United States

v. Twin City Power Co. of Georgia, 

, 205 (5th Cir.

1958); Marcello v. Ahrens, 

, 839 (5th Cir. 1954), aff’d,

(1955).         Accordingly, this court must follow Camara

and   See,   which    held   that,   because    of    the   Fourth    Amendment,

administrative       entry   or   invasion     of    private   residential    or

commercial property, without consent or an emergency situation, may

only be compelled within the framework of a suitable judicial

warrant procedure.

      Nevertheless, the majority concludes that the district court

and the panel Fourth Amendment majority were wrong in holding that

the URSB violated the building owners’ Fourth Amendment rights by

seizing and destroying their private property without consent or a



                                      36
warrant   and     in    the   absence    of     exigent    circumstances.       This

conclusion    is    based     on   a   common    theme,     (i)   that   the   Fourth

Amendment does not require a judicial warrant procedure to protect

individuals from meaningful interferences with their possessory

interests    in    private     property    by    governmental      entities;    (ii)

instead, the Amendment only protects such individuals by the

deterrent effects of reparations under § 1983 if it is determined

ex   post facto        that   private   property     was    seized   or   destroyed

“unreasonably” according to a standard of reasonableness or a

balancing of private and public interests. In effect, the majority

seems to think that the warrant requirements of Camara and See have

been overruled and Frank v. Maryland’s warrantless standard of

reasonableness has been resurrected in their place.

      Similarly, the majority’s reasoning erroneously suggests that

Justice White’s references in part III of Soldal to Camara and New

Jersey v. T.L.O., 

(1985), somehow signal approval of

warrantless       seizures    of   private      property,    without     consent   or

exigent circumstances, by officers acting under color of law, so

long as the officers comply with a standard of reasonableness

reflecting a careful balancing of public and private interests.

The passage containing those references, part of Justice White’s

explanation that Soldal’s interpretation of the Fourth Amendment

involves little or no risk of federalizing state law, states:

      More significantly, “reasonableness is still the ultimate
      standard” under the Fourth Amendment, Camara, supra, 

,    87    S.Ct.,   at     1736,     which   means     that
     numerous       seizures       of     this       type     will        survive
     constitutional        scrutiny.           As     is    true     in    other
     circumstances,        the   reasonableness          determination      will
     reflect a "careful balancing of governmental and private
     interests."     

, 469 U.S., at 

.      Assuming, for example, that the officers were
     acting pursuant to a court order, as in Specht v. Jensen,
     

(CA10 1987), or                  Fuentes v. Shevin, 

, 

, 

(1972), and as
     often would be the case, a showing of unreasonableness on
     these facts would be a laborious task indeed.                   Cf.    Simms
     v. Slacum, 3 Cranch 300, 301, 

(1806).                     Hence,
     while   there    is    no    guarantee      against     the     filing   of
     frivolous suits, had the ejection in this case properly
     awaited the state court's judgment it is quite unlikely
     that the federal court would have been bothered with a §
     1983 action alleging a Fourth Amendment violation.

.

     A careful reading of the complete passages from which Justice

White quoted in the forgoing paragraph shows that he, as the author

of Camara, T.L.O., and Soldal, did not in any of those passages

suggest dispensing with the warrant procedure. To the contrary, he

consistently repeated the idea he expressed for the Court in

Camara, “that a health official need not show the same kind of

proof to a magistrate to obtain a warrant as one must who would

search for the fruits or instrumentalities of crime.”                      

.      Later in Camara, in the passage partially quoted in

Soldal, Justice White stated: “The warrant procedure is designed to


                                          38
guarantee that a decision to search private property is justified

by a reasonable governmental interest. But reasonableness is still

the ultimate standard.   If a valid public interest justifies the

intrusion contemplated, then there is probable cause to issue a

suitably restricted search warrant.”   

  The same day in

See, he expressed these ideas in a different way:

     The agency’s particular demand for access will of course
     be measured, in terms of probable cause to issue a
     warrant, against a flexible standard of reasonableness
     that takes into account the public need for effective
     enforcement of the particular regulation involved.    But
     the decision to enter and inspect will not be the product
     of the unreviewed discretion of the enforcement officer
     in the field.

(footnote omitted).        His full sentence

describing the flexible probable cause concept in T.L.O., reads:

“Where a careful balancing of governmental and private interests

suggests that the public interest is best served by a Fourth

Amendment standard of reasonableness that stops short of probable

cause, we have not hesitated to adopt such a standard.”     

.

     Justice White also wrote for the Supreme Court in Marshall v.

Barlow’s, Inc., 

, 325 (1978), which held that, under

the warrant clause of the Fourth Amendment, the Occupational Safety

and Health Act (OSHA) is unconstitutional to the extent that it

would permit inspections of private businesses by OSHA inspectors



                                39
without a warrant or its equivalent.        He began by reaffirming that

“[t]he Warrant Clause of the Fourth Amendment protects commercial

buildings   as   well   as   private    homes”,   

   and   that,

accordingly, “warrantless searches are generally unreasonable, and

that this rule applies to commercial premises as well as homes.”

  Justice White then discussed Camara and See, and then

concluded “that unless some recognized exception to the warrant

requirement applies, See v. City of Seattle would require a warrant

to conduct the inspection sought in this case.”                  

Because of the absence of a recognized exception to the warrant

requirement – such as pervasively regulated businesses in which

entrepreneurs voluntarily choose to subject themselves to the full

arsenal of governmental regulation thereby precluding a reasonable

expectation of privacy (which is clearly the exception and not the

rule) – without a warrant a government inspector “stands in no

better position than a member of the public.”            

     Most important, in Marshall, Justice White expressly rejected

the Secretary of Labor’s argument that “the enforcement scheme of

the Act requires warrantless searches, and that the restrictions on

search discretion contained in the Act and in its regulations

already protect as much privacy as a warrant would.”                

These are precisely the arguments advanced by the City of Dallas

and accepted by the majority in this case.                   In fact, as the

following passage aptly demonstrates, these arguments take out of



                                       40
context Soldal’s quotation from Camara (“reasonableness is still

the ultimate standard”) and attribute to it a meaning explicitly

rejected by Justice White:

             The     Secretary       thereby      asserts     the        actual
     reasonableness of OSHA searches, whatever the general
     rule against warrantless searches might be.                     Because
     “reasonableness is still the ultimate standard,” Camara
     v. Municipal Court, 387 U.S., at 

,
     the Secretary suggests that the Court decide whether a
     warrant is needed by arriving at a sensible balance
     between        the     administrative       necessities        of        OSHA
     inspections and the incremental protection of privacy of
     business owners a warrant would afford. He suggests that
     only a decision exempting OSHA inspections from the
     warrant       clause   would    give    “full     recognition       to   the
     competing public and private interests here at stake.”
     

.
             We are unconvinced, however, that requiring warrants
     to inspect will impose serious burdens on the inspection
     system or the courts, will prevent inspections necessary
     to enforce the statute, or will make them less effective.
     . . .

     Moreover,         Justice      White      makes     crystal     clear           that

“reasonableness” afforded by the statutory scheme may substitute

for probable cause to issue the warrant, but it may not substitute

for the warrant itself:

             Whether the Secretary proceeds to secure a warrant
     or other process, with or without prior notice, his

                                        41
     entitlement           to    inspect           will     not     depend      on       his
     demonstrating probable cause to believe that conditions
     in violation of OSHA exist on the premises.                               Probable
     cause in the criminal law sense is not required.                                    For
     purposes         of   an    administrative           search     such      as    this,
     probable cause justifying the issuance of a warrant may
     be based not only on specific evidence of an existing
     violation         but      also     on    a     showing       that    “reasonable
     legislative or administrative standards for conducting an
     .    .    .    inspection         are    satisfied       with       respect     to   a
     particular [establishment].” Camara v. Municipal 

, 87 S.Ct., at 1736. . . . We doubt that
     the consumption of enforcement energies in the obtaining
     of such warrants will exceed manageable proportions.

(footnote omitted)(bracketed text in original).

     Finally,         Justice        White      rejected       the       notion      “that      the

incremental         protections        afforded       the    employer’s        privacy         by   a

warrant       are    so      marginal         that    they        fail    to    justify         the

administrative burdens that may be entailed.”                            

               The authority to make warrantless searches devolves
     almost          unbridled         discretion           upon     executive           and
     administrative officers, particularly those in the field,
     as to when to search and whom to search.                            A warrant, by
     contrast, would provide assurances from a neutral officer
     that the inspection is reasonable under the Constitution,
     is       authorized        by     statute,       and    is     pursuant        to    an
     administrative plan containing specific neutral criteria.

omitted).

     Against this background, it is clear that Justice White in the

Soldal paragraph quoting parts of the Camara and T.L.O. passages


                                                42
did not impliedly or silently overrule the principal holding of

Camara that significant administrative intrusions require a warrant

procedure, in the absence of consent or an emergency.22 Read within

the context of the passages from Camara, See, Marshall, and T.L.O.,

describing the flexible standard of reasonableness, it is clear

that in that Soldal paragraph Justice White merely expressed the

opinion that it will be difficult to show a Fourth Amendment

violation when an officer seizes property pursuant to a court

order,    if    the   order   was   measured   and   issued   according   to   a

reasonable standard based on a careful balancing of public and

private interests.        This meaning is borne out by the citation in

the Soldal paragraph calling upon the reader to reference Simms v.

Slacum, 3 Cranch 300, 301, 

, 306-07 (1806), in which

Chief Justice Marshall stated:

               The judgments of a court of competent jurisdiction,

     although obtained by fraud, have never been considered as

     absolutely void; and, therefore, all acts performed under

     22
          In summary, we hold that administrative
          searches of the kind at issue here are
          significant intrusions upon the interests
          protected by the Fourth Amendment, that such
          searches when authorized and conducted without
          a warrant procedure lack the traditional
          safeguards   which    the   Fourth    Amendment
          guarantees to the individual, and that the
          reasons put forth in Frank v. Maryland and in
          other cases for upholding these warrantless
          searches are insufficient to justify so
          substantial   a   weakening   of   the   Fourth
          Amendment protections.

.

                                        43
     them are valid so far as respects third persons.            A

     sheriff   who   levies   an   execution   under   a   judgment

     fraudulently obtained, is not a trespasser, nor can the

     person who purchases at a sale under such an execution,

     be compelled to relinquish the property he has 

.

     In short, Camara, See, Marshall, T.L.O., and Soldal all

indicate that under certain circumstances a flexible standard of

reasonableness can substitute for the kind of probable cause that

must be shown by law enforcement officers to obtain a warrant to

search for criminal evidence; they do not support the notion that

reasonableness can substitute for the judicial warrant that is

required before an administrative search or seizure of private

property without consent or an emergency situation.

     This court cannot legitimately overrule or disregard Camara

and See, which require a warrant before a municipality can effect

a search or seizure of private residential or commercial property

without consent or emergency circumstances under health, safety,

and building regulations, even if a flexible probable cause or

reasonableness standard has been met.

     The language upon which the majority relies in arguing that

Camara and See are inapplicable is taken out of context from the

“special, beyond normal, law enforcement needs” cases that are

inapposite here. The cases the majority cites--Vernonia Sch. Dist.



                                   44
v. Acton (suspicionless random drug testing of high school athletes

in a particular exigent factual situation); Griffin v. Wisconsin

(reasonable grounds search without a warrant of probationer within

legal custody under state law pursuant to a state regulation

authorizing    such    warrantless    searches);       New   Jersey    v.   T.L.O.

(search of student’s purse on suspicion of violation of school rule

against smoking)--are those in which the Court has “permitted

exceptions when ‘special needs, beyond the normal need for law

enforcement,    make    the   warrant       and   probable-cause      requirement

impracticable.’” Vernonia Sch. Dist. v. Acton, 

, 653

(1995) (citing Griffin v. Wisconsin, 

, 873 (1987)).

     The Court in those cases clearly limited the “special needs”

exception to the warrant requirement to special situations in

criminal law enforcement: “A State’s operation of a probation

system, like its operation of a school, government office or

prison, or its supervision of a regulated industry, likewise

presents ‘special needs’ beyond normal law enforcement that may

justify departures from the usual warrant and probable cause

requirements.”    

; see also Chandler v.

Miller, 

(1997) (Georgia’s requirement that candidates

for state office pass drug test did not fit within closely guarded

special   needs        category      of        constitutionally       permissible

suspicionless searches ); United Teachers of New Orleans v. Orleans

Parish Sch. Bd., 

(5th Cir. 1998) (school board’s rules



                                          45
violated Fourth Amendment inasmuch as no special needs exception to

requirement of individualized suspicion of wrongdoing applied).

     The present case is not a criminal law enforcement case, much

less a “special needs, beyond the normal need for law enforcement”

case,   and   it    is   certainly   not    a   case    in   which    the   warrant

requirement is impracticable.           The majority’s rejection of the

warrant requirement in this case makes it difficult to say that it

exists at all in the Fifth Circuit, except for few persons whose

criminal convictions are reversed because the violation of their

Fourth Amendment rights was so flagrant as to amount to harmful,

reversible error.

                         C. This Circuit and Others

     In concluding that the URSB violated the owners’ Fourth

Amendment rights, the Freeman panel Fourth Amendment majority

decision followed the controlling precedent of this Circuit, and

this decision does not conflict with what is the controlling

precedents of other circuits.

     In United States v. Paige, 

, 1021 (5th Cir. 1998),

this court recognized that “[t]he Supreme Court recently made clear

that the protection afforded by the Fourth Amendment extends to an

individual’s       possessory   interests       in     property,     even   if   his

expectation    of    privacy    in   that   property      has   been   completely

extinguished.”      (citing 

-63).              This court in

Paige also observed that “[g]enerally, ‘seizures conducted outside



                                       46
the    judicial      process,      without     prior   approval      by    a     judge   or

magistrate,       are        per    se     unreasonable       under        the     Fourth

Amendment–subject only to a few specifically established and well

delineated     exceptions.’”         

  (quoting       Minnesota       v.

Dickerson, 

, 372 (1993)). The Freeman Fourth Amendment

majority applied Paige’s teachings from the Supreme Court cases of

United States v. Jacobsen, 

, and United States v.

Place, 

, to conclude that the URSB seizures do not fall

within an exception to the warrant requirement fashioned in those

cases because the seizures were not lawful and temporary in their

inception, the seizures did not have a de minimis impact on the

owners’ property interests, and it could not be said that the

safeguards of a warrant would have only minimally advanced Fourth

Amendment interests.           Freeman v. City of Dallas, 

, 606

(5th Cir. 1999).

       The Freeman Fourth Amendment majority is not inconsistent with

the other Circuits’ leading cases although it is at odds with an

Eighth Circuit case.           In Flatford v. City of Monroe, 

,

170 (6th Cir. 1994), the Sixth Circuit held that under the Fourth

Amendment the plaintiffs “were entitled to pre-eviction judicial

oversight in the absence of emergency circumstances.”                          That court

also found that the eviction had been predicated upon exigent

circumstances.        

        In Hroch v. City of Omaha, 

,    697   (8th    Cir.    1993),     the      Eighth   Circuit    held       that    the



                                             47
defendants’ actions in implementing the City’s condemnation order

did not constitute an unreasonable seizure in violation of Hroch’s

Fourth Amendment rights.   The Hroch court pointed out that a state

court had denied an injunction so that there was judicial oversight

of the condemnation process which provided “a constitutionally

adequate substitute for a warrant.”       

6-97 (citing and

quoting Donovan v. Dewey, 

, 603 (1981)).    In Conner v.

City of Santa Ana, 

, 1492 (9th Cir. 1990), the Ninth

Circuit held that a search and seizure of the Conners’ property to

abate a known nuisance without any judicial authorization was

impermissible under the Fourth Amendment.       Although Conner was

decided before Soldal, it is consistent with that decision because

it relied on Camara, and Soldal did not change Camara; rather,

Soldal only reaffirmed what had been established before, that the

Fourth Amendment protects property as well as privacy and may

protect property interests even when neither privacy nor liberty is

at stake.   

-71.   In Samuels v. Meriwether, 

, 1167-68 (8th Cir. 1996), however, the Eight Circuit

misread Soldal as overruling Camara sub silentio and replacing the

warrant process required by Camara with a reasonableness balancing

test. Soldal does not express or imply such an intention, however,

and it is absurd to attribute to Justice White, the author of both

opinions, an intention to overrule       Camara without saying so,




                                 48
particularly since he cites and quotes Camara prominently with

approval in Soldal.

     All of these circuit decisions, except Samuels v. Meriwether,

are consistent with a correct reading of Camara, See, and Soldal

which plainly indicate that, in the context of administrative

searches and seizures, compliance with reasonable legislative and

administrative standards may serve as probable cause for a warrant,

but not as a substitute for the warrant procedure itself; see

, 545-46; 

; although

nothing forecloses prompt inspections, even without a warrant, that

the law has traditionally upheld in emergency situations.      See

.

                        D. Other Arguments

     A number of rationales are advanced by the majority that have

a false appearance of genuineness, but are really only variations

on their main theme of contention:

     (1) That only self-imposed reasonableness is required of a

governmental entity in seizing and razing buildings for urban

renewal, and the municipal procedures followed by the URSB assured

sufficient reasonableness in this case.   This argument is premised

upon two faulty propositions: (i) that Fourteenth Amendment due

process of law and Fourth Amendment reasonableness analyses are

fungible; and (ii) that Soldal sub silentio overruled Camara and

its warrant requirement for administrative searches and seizures,



                                49
thereby   resurrecting        Frank   v.     Maryland     and       its    warrantless

reasonableness standard.          With respect to (i), in Soldal, the

Supreme Court expressly rejected that proposition, stating that

“[c]ertain wrongs affect more than a single right and, accordingly,

can implicate more than one of the Constitution’s commands.                         Where

such   multiple    violations     are   alleged      .    .    .    we    examine   each

constitutional provision in 

; see also United

States v. James Daniel Good Real Prop., 

, 49-50 (1993)

(in considering claims that the same government conduct violated

both the Fourth Amendment protections against unreasonable seizure

and the Fifth Amendment protections of due process of law, the

Court stated that it has repeatedly rejected the view that the

applicability      of   one    constitutional        amendment           preempts    the

guarantees of another).          

, does not

support   the     argument    either,      because   it,       in    effect,     merely

concludes that both the Fourth Amendment and Due Process standards

are relaxed where the conduct complained of is justified by exigent

circumstances.       With respect to (ii), as demonstrated earlier,

Soldal, a unanimous opinion by Justice White, building on and

citing with approval his own opinion for the court in Camara,

cannot reasonably be read to implicitly or silently overrule

Camara’s core holding that, in the absence of consent or exigent

circumstances,     administrative       searches     or       seizures      of   private




                                        50
houses or buildings without a judicial warrant violate the Fourth

Amendment, and that Frank v. Maryland is expressly overruled.

     (2) That the URSB is the functional equivalent of a neutral

and detached judicial officer.    The fallacy of this contention is

self-evident.   The URSB is an agency of the City of Dallas charged

with the remediation – including the demolition--of structures

deemed by it to constitute urban nuisances.       The URSB’s job is to

eliminate unsightly conditions adversely affecting the economic

value of neighboring property and the City’s tax base.         The URSB

cannot possibly serve effectively in this executive capacity and

act as a neutral and detached magistrate to safeguard the rights of

the owners whose buildings it determines should be razed.         “When

the right of privacy must reasonably yield to the right of search

is, as a rule, to be decided by a judicial officer, not by a

policeman or government enforcement agent.”        

(citing and quoting Johnson v. United States, 

, 14

(1948)).   This principle applies with equal force to the seizure

and destruction of real property by government enforcement agencies

such as the URSB, because the decision to seize and destroy private

property under these circumstances, like the decision to enter and

inspect, “[can]not be the product of unreviewed discretion of the

enforcement officer in the field.”         

     Rather, the

“warrant   machinery   contemplated   by   the   Fourth   Amendment”   so

prominently emphasized by Justice White is necessarily administered



                                 51
by a “neutral magistrate.”     See 

; 

.

       (3) That the warrant process would overburden the URSB.          This

argument was rejected firmly by the Supreme Court in Camara, 

, and again in 

.         Moreover,

the step of securing a warrant issued by a neutral and detached

judicial officer is not difficult or time consuming.          The property

owner benefits greatly from the safeguarding of his protected

interests that can only be provided by a neutral judicial officer’s

pre-execution approval of the seizure and demolition.                 In the

present case, as is typical, almost a year passed between the

notices of noncompliance and the ultimate demolition orders.             Had

the URSB    at   the   appropriate   time   during   this   lengthy   period

properly obtained a warrant for the seizure and demolition of the

owners’ buildings, it is almost certain that the federal court

would not have been bothered with this § 1983 action alleging a

Fourth Amendment violation.

       (4) That Texas currently has no procedural mechanism for

judicial oversight of public nuisance abatement.               However, it

appears that such oversight is provided for by Texas legislated

law.    See Tex. Gov’t. Code Ann. §§ 24.08 (district court may hear

and determine any cause cognizable by courts of law or equity), and

24.011 (district court judge may grant all writs necessary to

enforce the court’s jurisdiction). Moreover, judicial oversight of



                                     52
public nuisance abatement in the context of this case is required

by Texas jurisprudence.          See City of Houston v. Lurie, 

, 874 (Tex. 1949) (“It has been repeatedly held that the

question whether property is a public nuisance and may be condemned

as such is a justiciable question to be determined by a court.”);

Hart v. City of Dallas, 

, 379 (Tex.Civ.App.-Tyler

1978, no writ) (whether the URSB or the city council made the

determination that the house was a hazard to the health, safety,

and welfare of the citizens, “the City would have been without

authority to demolish the house in the absence of a judicial

determination that the house was a nuisance in fact.”).                Moreover,

even    if        the   Texas    courts    lacked      express   statutory     or

jurisprudential authority to issue warrants for the search or

seizure      of    property,    undoubtedly    they    are   endowed   with   such

authority by the Fourth Amendment, the State Constitution, and

their inherent judicial powers.

                                 II.   DUE PROCESS

       The plaintiffs cross-appealed the district court’s ruling

against their Fifth Amendment claim.             I dissent from the en banc

majority’s decision, affirming summary judgment in favor of the

City of Dallas on the due process claim for the same reasons that

I dissented from the panel’s decision.                See 

(Dennis, dissenting).




                                          53
     A governmental seizure of a person’s property implicates two

explicit textual sources of constitutional protection, the Fourth

and Fifth Amendments.   James Daniel Good Real 

; Soldal v. Cook 

, 70-71.   Although the

decision in James Daniel Good Real Property was based upon the

procedural protections of the Fifth Amendment’s Due Process Clause,

the similarly worded procedural protections of the Fourteenth

Amendment’s Due Process Clause apply with equal force to states and

municipalities.23



     23
      The Supreme Court has held that the Fourteenth Amendment’s
Due Process Clause “legitimately operates to extend to the citizens
and residents of the States the same protection against arbitrary
state legislation, affecting life, liberty and property, as is
offered by the Fifth Amendment against similar legislation by
Congress.” Hibben v. Smith, 

, 325 (1903). Of the
guarantees of the Fifth Amendment, only the grand jury clause has
been held not to be applicable to the states. 2 Ronald D. Rotunda
& John E. Nowak, Treatise on Constitutional Law § 14.2, at 347-48
(2d ed. 1992) (citing Hurtado v. California, 

(1884)).
The Fifth Amendment prohibitions of compulsory self-incrimination
and double jeopardy were made applicable to the states in Malloy v.
Hogan, 

(1964), and Benton v. Maryland, 

(1969), respectively. In addition, although the Fifth Amendment’s
just compensation provision has not “technically” been incorporated
against the states, “the Court has held that the fourteenth
amendment due process guarantee provides the same safeguard against
a state’s taking of property without just compensation.” 2 Rotunda
& Nowak, supra, § 14.2, at 350 (citing Chicago B. & Q. R. Co. v.
Chicago, 

(1897)). See also Hurtado v. California, 

, 541 (1884) (Harlan, J., dissenting) (“[T]he            5th
[amendment] provided that ‘no person shall be deprived of life,
liberty or property, without due process of law.’ This language is
similar to that of the clause of the 14th amendment now under
examination. That similarity was not accidental, but evinces a
purpose to impose upon the States the same restrictions, in respect
of proceedings involving life, liberty and property, which had been
imposed upon the General Government.”).

                                 54
     The City does not, and could not, dispute that the seizure and

destruction of the plaintiffs’ real property deprived them of

property       interests   protected     by     the     Fifth   and   Fourteenth

Amendments’ Due Process Clauses.             The City argues, however, that a

hearing before a panel of the City’s own Urban Rehabilitation

Standards Board afforded the plaintiffs all the process they were

due before their property was seized and destroyed. I believe that

in the absence of an extraordinary situation, which did not exist

in the present case, the Due Process Clauses require that, before

a person is deprived of his real property by the government, he

must be given notice and an opportunity for a meaningful hearing

before a neutral magistrate, and that there must be a judicial

determination that the seizure is justified.

     Where the government seizes property not to preserve evidence

of criminal wrongdoing but to assert ownership and control over the

property,      its   action   must    also     comply    with   the   procedural

protections of the Due Process Clauses of the Fifth and Fourteenth

Amendments.       James Daniel Good Real 

.                 The

Supreme Court’s precedents establish the general rule that Due

Process requires that, absent an extraordinary situation, a party

cannot invoke the power of the state to seize a person’s property

without    a    prior   judicial     determination      that    the   seizure   is

justified.      United States v. $8,850, 

, 562 n.12 (1983)

(citing Boddie v. Connecticut, 

, 378-379 (1971)); see



                                        55
also North Georgia Finishing, Inc. v. Di-Chem, Inc., 

(1975); Fuentes v. Shevin, 

(1972); Sniadach v. Family

Finance Corp., 

(1974); Mitchell v. W.T. Grant Co., 

(1974).    Due Process also requires that individuals must

receive notice and an opportunity to be heard before the government

deprives them of property.       James Daniel Good Real 

(citing 

n. 12; 

; 

(Harlan, J., concurring); Mullane v.

Cent. Hanover Bank & Trust Co., 

, 313 (1950)).

     In James Daniel Good Real Property, the Supreme Court held

that, in the absence of exigent circumstances, the Due Process

Clause requires the government to afford notice and a meaningful

opportunity to be heard in an adversary hearing, to ensure the

requisite neutrality that must inform governmental decisionmaking,

before seizing real property subject to civil 

, 53-56.      The protection of an adversary hearing before a

neutral magistrate is of particular importance where the government

has a direct pecuniary interest in the outcome of the proceeding.

     In James Daniel Good Real Property, the Supreme

Court emphasized that “[t]he constitutional limitations we enforce

in this case apply to real property in general, not simply to

residences.”    

.

     Accordingly,    the   Due   Process   requirements   of   notice,   a

meaningful adversary hearing before a neutral magistrate, and a



                                     56
judicial determination of justification must be afforded to a

person before his real property is seized and destroyed in order to

abate or rehabilitate an “urban nuisance.”                 In a case such as the

present one, there is need for equally rigorous adherence to the

principles of Due Process as in civil forfeitures of real property.

The City of Dallas has pecuniary interests in the outcome of such

proceedings,     e.g.,   justification       for      federal    and    state   urban

renewal grants; enhancement of the municipal tax base by promoting

the replacement of old buildings with new ones.                        The need for

safeguards against arbitrary, capricious, or unreasonable seizures

based on    subjective    standards        may   be    even   greater     in    “urban

nuisance” or “urban rehabilitation” cases.                      Moreover, a post-

seizure hearing cannot provide any remedy in such cases because the

destroyed property cannot be restored and the best evidence of

whether the seizure was justified will have been demolished also.

It is not necessary to accomplish the City’s legitimate goals of

urban rehabilitation that an owner whose real property the City

proposes to destroy be deprived of an opportunity for a meaningful

pre-seizure adversary hearing before a neutral and impartial judge

or   magistrate.       Requiring     the    City      to   postpone     seizure    and

destruction until after such a hearing and judicial determination

that the seizure is justified creates no significant administrative

burden.    And   any   harm   that   results       from    delay   is    minimal    in




                                       57
comparison to the injury occasioned by the erroneous seizure and

destruction of real property.         

                               III. CONCLUSION

     In    summary,   Camara    and   See   require   a   judicial   warrant

procedure for the administrative search or seizure of private

property, except in consensual or emergency situations.              Soldal

does not overrule or modify Camara or See; it simply makes clear

that the Fourth Amendment protects property as well as privacy and

liberty.    The Freeman Fourth Amendment majority correctly applied

Camara, See, and Soldal, and the other circuits’ decisions, except

for one, are not in conflict with that interpretation. Thus, I

would affirm the judgment against the City of Dallas.

     Because the process used by the City of Dallas failed to meet

the requirements of due process as dictated by the Fifth Amendment,

I would also reverse the judgment for the City of Dallas and would

grant summary judgment in favor of the plaintiffs on this claim.




                                      58