Charles Edward Richter v. J. BEATTY, Deputy Sheriff Queen Anne’s County

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1053
CHARLES EDWARD RICHTER,
Plaintiff - Appellant,
v.
J. BEATTY, Deputy Sheriff Queen Anne’s County,
Defendant – Appellee,
and
STATE OF MARYLAND; CHARLES F. CROSSLY, JR.,
Defendants.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:07-cv-02707-RDB)
Submitted: February 15, 2011 Decided: March 17, 2011
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robin R. Cockey, COCKEY, BRENNAN & MALONEY, PC, Salisbury,
Maryland, for Appellant. Daniel Karp, KARPINSKI, COLARESI &
KARP, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Charles Richter appeals the district court’s judgment,
entered after a jury trial, in favor of James Beatty. Richter
claims error in three respects: (1) the district court erred in
granting summary judgment on his procedural due process claim;
(2) the court erred in granting summary judgment on his
substantive due process claim; and (3) the court erred in
revisiting the issue of qualified immunity after the close of
his case-in-chief. For the reasons that follow, we affirm.
On October 8, 2004, Richter, a retired police officer,
decorated his 1988 Chevrolet Beretta (“Beretta”) with swastikas
and the words “Vote for Pipkin.” He then parked the car on Pier
One Road in Queen Anne’s County, Maryland, at a location popular
with local politicians for campaigning. The words written on
the vehicle referred to state Senator E.J. Pipkin, whom Richter
opposed. Richter also taped a letter to then-Maryland Governor
Robert Erlich to the inside of the Beretta’s window, claiming
that the local police force refused to enforce the laws, and
that Pipkin had promised him aid and then refused to assist him.
The car was legally parked and in operable condition.
Beatty, a Sherriff’s deputy, tagged the vehicle with a
repair order and noted that it would be towed in forty-eight
hours if not moved. Although Richter surreptitiously moved the
vehicle during the forty-eight hour period, he always returned

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it to its original parking space. Ultimately, Beatty had the
vehicle towed, and Richter refused to pay the $100 towing fee
for the vehicle’s return. The Beretta was eventually destroyed
and the underlying suit followed. Richter alleged violations of
his First Amendment rights, his substantive and procedural due
process rights, and sought injunctive relief and punitive
damages. The district court granted summary judgment in favor
of Beatty on Richter’s due process claims, but concluded that
Beatty was not entitled to good faith qualified immunity on
Richter’s First Amendment retaliation claim, and denied summary
judgment. The case proceeded to trial.
At trial, Richter chose only to call two witnesses
during his case-in-chief: himself and Beatty (who was only
called to authenticate certain documents). Richter’s decision
was purportedly a strategic one: he and his attorney believed
that it would not be advantageous to call hostile witnesses
during the case-in-chief, and chose instead to develop their
case through cross-examination of defense witnesses. After the
close of the case-in-chief, Beatty moved for judgment as a
matter of law. The district court, after hearing argument,

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denied the motion, but chose to revisit the question of
qualified immunity.*
The court stated that it would allow the case to go to
a jury, though, to allow the jury to determine whether Richter
had satisfied the factual predicate for his claim. If the jury
ruled in Richter’s favor, the court would then determine, as a
matter of law, that Beatty was entitled to qualified immunity
and would strike the jury’s verdict. Richter objected to the
court’s approach, arguing that disclosing how the court would
rule post-verdict would alter Beatty’s manner of presentation of
evidence, and possibly deprive Richter of the chance to cross-
examine defense witnesses and develop his case. Beatty elected
not to present any evidence, and the jury ruled in his favor.
This timely appeal followed.
I. Procedural Due Process
Richter first claims that the district court erred in
concluding that his procedural due process rights were
satisfied. The gravamen of his claim is that by towing and
destroying his Beretta, he was deprived of a property interest
* During the summary judgment stage, this case was presided
over by then-District Judge André Davis. When Judge Davis was
elevated to this court, he was replaced on this case by Judge
Richard D. Bennett, who presided over the trial.

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without either a pre-deprivation or a post-deprivation remedy
that would satisfy Fourteenth Amendment scrutiny.
This court reviews de novo a district court’s order
granting summary judgment and views the facts in the light most
favorable to the nonmoving party. Rowzie v. Allstate Ins. Co.,
556 F.3d 165, 167 (4th Cir. 2009). Summary judgment is
appropriate when no genuine issue of material fact exists and
the moving party “is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c)(2). Summary judgment will be granted
unless “a reasonable jury could return a verdict for the
nonmoving party” on the evidence presented. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
To establish a violation of procedural due process,
Richter must show that (1) he had a property interest (2) of
which the defendant deprived him, (3) without due process of
law. Sunrise Corp. of Myrtle Beach v. City of Myrtle Beach, 420
F.3d 322, 328 (4th Cir. 2005) (citing Sylvia Dev. Corp. v.
Calvert Cnty., Md., 48 F.3d 810, 826 (4th Cir. 1995)).
Procedural due process requires, at a minimum, fair notice and
an opportunity to be heard. Mathews v. Eldridge, 424 U.S. 319,
333 (1976). In order to determine whether an individual has
received fair notice, we “must examine the relevant facts of
each case.” United States v. Hoechst Celanese Corp., 128 F.3d
216, 224 (4th Cir. 1997). Beyond the minimum requirements of

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notice and an opportunity to be heard, due process is “flexible
and calls for such procedural protections as the particular
situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481
(1972).
Here, it is clear that Richter had a property interest
in his vehicle. Although the district court assumed that Beatty
had deprived Richter of his interest in the vehicle, Beatty
argues on appeal that there is no evidence that Beatty ordered
the car towed or destroyed. Because Richter has not shown that
he was deprived of due process, we do not reach the issue of
whether Beatty was responsible for the towing and subsequent
destruction of the Beretta.
After review of the record, we conclude that Richter
was not deprived of procedural due process. Indeed, Richter
could have availed himself of the court system to prevent the
destruction of the Beretta. Moreover, he could have simply paid
the fine and then challenged the fine’s validity. Finally, it
appears from the record that police officers attempted to return
the Beretta to Richter or waive the towing fee, and Richter
refused, asserting that he was entitled to a day in court. In
light of this record, we cannot conclude that Richter was denied
procedural due process.

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II. Substantive Due Process
The government runs afoul of substantive due process
only when its actions shock the conscience. Cnty. of
Sacramento v. Lewis, 523 U.S. 833, 845-47 (1998); Young v. City
of Mount Ranier, 238 F.3d 567, 574 (4th Cir. 2001). In other
words, the protections of substantive due process extend only to
“state action so arbitrary and irrational, so unjustified by any
circumstance or governmental interest, as to be literally
incapable of avoidance by any predeprivation procedural
protections or of adequate rectification by any post-deprivation
state remedies.” Rucker v. Harford Cnty., 946 F.2d 278, 281
(4th Cir. 1991). To shock the conscience, “the conduct must be
‘intended to injure in some way unjustifiable by any government
interest.’” Hawkins v. Freeman, 195 F.3d 732, 742
(4th Cir. 1999) (en banc) (quoting Lewis, 523 U.S. at 849).
We have reviewed the record, and we agree with the
district court’s conclusion that Beatty’s actions did not
violate Richter’s substantive due process rights. First,
Richter had post-deprivation procedures available to remedy the
towing of his vehicle. Accordingly, the actions were not
“literally incapable of . . . adequate rectification by any
post-deprivation state remedies.” Rucker, 946 F.2d at 281.
Moreover, the towing of Richter’s Beretta was simply not so
unjust that no amount of fair procedure could rectify it. We

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therefore decline to disturb the district court’s grant of
summary judgment on Richter’s substantive due process claims.
III. Unfair Prejudice at Trial
Finally, Richter argues that the district court
unfairly prejudiced him by readdressing the issue of qualified
immunity at trial. In so doing, Richter argues, the district
court altered the manner in which Beatty would present evidence
and prevented him from developing his case by way of cross-
examining Beatty’s witnesses. Richter does not appear to
dispute the district court’s legal conclusions with respect to
Beatty’s qualified immunity claim; merely the timing of the
court’s decision to announce that Beatty would receive the
benefit of qualified immunity.
We agree with the parties that the appropriate level
of review is for abuse of discretion. We conclude, however,
that the district court did not abuse its discretion in
revisiting the question of qualified immunity. First, the court
noted that since the summary judgment phase, there had been a
change in the law that arguably affected whether good faith
qualified immunity was applicable. See Pearson v. Callahan, 129
S. Ct. 808 (2009). Regarding the timing of the decision, our
review of the record reveals no abuse of discretion.

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Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED

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