MEMORANDUM DECISION AND ORDER On October 6, 2020, the plaintiff filed a complaint against the defendant Nassau County, asserting claims under 42 U.S.C. §1983 and the New York constitution, and for declaratory relief.1 Before the Court are the parties’ cross-motions for partial summary judgment. (ECF Nos. 30, 32.) For the reasons explained below, the plaintiff’s motion is granted in part, and the defendant’s motion is denied. BACKGROUND The plaintiff challenges Nassau County’s system for targeting “scofflaws” — drivers who have two or more unpaid traffic tickets. As explained more fully below, the defendant contracted with Paylock, which is authorized to patrol the county, run license plates to identify scofflaws, and “boot”2 their cars. Paylock in turn contracted with C&R Automotive, Inc. (“C&R Automotive”), which tows and impounds the cars. The county’s policy does not require its agents or contractors to get a warrant or court order before seizing vehicles. Nor is there any provision for a hearing at which a registered owner or lienholder can challenge the seizure of the vehicle. The plaintiff is the lienholder of a vehicle seized pursuant to this policy. Section 8-120.2 of the Nassau County Administrative Code, entitled “Immobilization and Removal of Illegally Parked Vehicles and Vehicles of Scofflaw,” authorizes the Nassau County Police Department to “boot” and tow away illegally parked vehicles and the “vehicles of scofflaws,” which are defined as: [V]ehicles…[a]gainst which two (2)[] or more tickets, warrants, summonses or fines for parking violations or two (2)[] or more notices of liability issued pursuant to any law authorizing photo or digital enforcement of the vehicle and traffic law or any local law…have been issued and are delinquent or any other vehicles owned by a person, corporation or other concern who also owns a vehicle subject to immobilization or removal…. Nassau Cnty. Admin. Code §8-120.1. The police department may contract with a private company to handle immobilizing, removing and storing vehicles. Id. §8-120.2(e). Section 8-120.2(f) provides that “[a]ll sums due for delinquent parking tickets and all fees for immobilization or removal shall be a lien on any vehicle so immobilized or removed. On or after the fifteenth business day following the immobilization or removal of a vehicle…, such vehicle shall be subject to levy upon execution of a judgment.”3 In practice, C&R Automotive asserts liens on vehicles that it tows and impounds. Section 8-120.5 directs the police department and Nassau County Traffic and Parking Violations Agency (the “TPVA”) to “develop procedures necessary to effectuate the purposes and provisions of this title,” including establishing the fees that the police department or its contractor may charge for immobilization, removal and storage. The defendant has a written policy governing the collection of traffic and parking tickets entitled “Nassau County Boot and Tow Program: Policy and Procedures” (the “Boot and Tow Policy”). (Pl. 56.1 31; ECF No. 30-16.) According to the policy, the defendant has a contract with “non-party IPT LLC d/b/a Paylock” (Pl. 56.1
10-11), and pursuant to that contract, Paylock “regularly patrols County public areas utilizing a mobile license plate recognition system” to identify scofflaw vehicles. (ECF No. 30-16 at 2.) Paylock contracts with C&R Automotive, which tows and impounds targeted vehicles. (Id.) When the defendant issues two or more traffic or parking tickets to a vehicle and the owner does not resolve those tickets, the defendant or Paylock searches for that owner’s vehicle and places a boot on it; the defendant’s definition of “scofflaw” permits the immobilization and removal of any vehicle owned by someone with two or more outstanding tickets, even if the vehicle was not involved in the underlying traffic or parking violations. (ECF No. 30-1 at 1; ECF No. 30-16 at 2.) The vehicle can be towed if the owner does not try to get the boot removed within 48 hours. (ECF No. 30-16 at 2.) Within two days of the tow, the TPVA sends a written notice to the titled vehicle owners and any known lienholders or lessors. The defendant’s policy requires that the notice include the following information: (i) Location of the vehicle; (ii) Reason for the tow; (iii) The scofflaw’s ability to obtain the release of such vehicle upon payment of the outstanding fines, immobilization, and towing/storage fees; and (iv) The scofflaw’s option to post a bond, as provided by Section 8-120(ii)(b) of the Administrative Code. (Id. at 3-4.) The notice also explains how a lienholder can obtain the release of a vehicle, and describes the documentation that the lienholder must have to prove “legal entitlement to possession of the vehicle:” (i) Notice of Repossession; (ii) Certified copy of the original title, or a copy affirmed to be a true copy by the records custodian in the affidavit referred to in section (iv) below; (iii) Authorization for the party’s agent to claim the vehicle; and (iv) Satisfactory proof of a lienholders or lessor’s right to immediate possession of a vehicle under the relevant documents with the lessee/borrower. An affidavit from an appropriate custodian of records of the lienholder or lessor stating the reasons the lienholder or lessor has a current right to take possession of the vehicle (i.e. non-payment under the lease or contract, non-monetary default under the lease or contract, etc.), which shall attach the lease or contract document, and which affidavit shall contain an acknowledgement that the County has the right to rely on the representations contained therein, shall be satisfactory proof of such immediate possessory right. (Id. at 4.) In addition, the lienholder must release the defendant and the tow operator from liability by signing: An agreement to release the County and the tow operator/tow yard for its conduct in towing the vehicle, and as to the County only, to release any other claims that may exist between the lienholder/lessor and the County. (Id.) Finally, the policy describes the fees for which lienholders might be responsible: Lienholders and lessors will not be responsible for payment of the underlying traffic and/or parking violation fines. The lienholders and lessors may or may not be responsible for towing and storage fees paid to third parties pursuant to New York Lien Law §184, on which the County takes no position but for which the County shall not refuse to authorize release of the vehicle. Lienholders and lessors will be provided a breakdown of such fees upon contacting TPVA. (Id. at 5.) The defendant’s “Boot and Tow policy for collecting traffic and/or parking tickets does not include obtaining a warrant or a Court Order.” (Id. 33.) Nor does it afford “a hearing before a neutral decision maker at any time relative to the propriety of the towing of a vehicle under that policy,” “the propriety of [the defendant] allowing a private entity to assert a lien against a vehicle towed under that policy” or the “demand for a release of liability as a condition for release of a vehicle that has been towed under that policy.”4 (Id.
