Can a city police officer tow a car off a private restaurant's parking lot just because the restaurant owner asks, and does the city police department have any duty to arrest people loitering on that private lot?
Plain-English summary
Plymouth's police chief asked AG Rufus Edmisten two practical questions that small-town departments still wrestled with in 1981. First, when a restaurant owner called and said "tow that car off my lot," should the police call a wrecker? Second, when an owner complained about people just hanging around in the parking lot, should officers arrest them?
The AG said no to both. On towing, the police should not act without a written request from the property owner accepting responsibility for damages. The reason was civil liability. Two federal circuit decisions, Huemmer v. Ocean City (4th Cir. 1980) and Stypmann v. City & County of San Francisco (9th Cir. 1977), had recently held that a vehicle operator has a constitutional right to notice and a hearing on whether the towing was legal. If the tow turned out to be improper, the operator could recover damages and get the vehicle back. A municipality that towed on an oral request from a private business owner could be exposed to those damages itself unless the business owner had agreed in writing to bear the risk.
On loitering, the AG said the police had no duty to arrest someone just because they were standing on a private lot. The proper route was for the owner to ask the person to leave; if the person refused, the owner could swear out a trespass warrant. Until that warrant was issued, the police had no legal hook to make an arrest.
The opinion is short, two-paragraph stuff. But the underlying point matters: police authority to interfere with someone's property (a car) or freedom of movement (loitering) does not flow from a private business owner's preference. It flows from law, from court orders, or from emergencies. The right intermediary is paperwork: a written tow-authorization in one case, a trespass warrant in the other.
Currency note
This opinion was issued in 1981. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. North Carolina has since enacted a more detailed private-property towing statute (see G.S. § 20-219.2 and the 2016 regulation of nonconsensual tow operators), and the underlying due-process framework from Huemmer and Stypmann has been refined in later cases. Anyone analyzing a current private-lot tow question should look at the current statute, local ordinance, and recent towing-related decisions.
Background and statutory framework
The constitutional issue underneath the AG's first answer came from the line of cases extending Mathews v. Eldridge and Fuentes v. Shevin into the towing context. By 1980, courts had recognized that when a government actor towed a vehicle, due process required some kind of post-deprivation procedure for the owner to contest the basis for the tow. Huemmer and Stypmann applied that principle to nonconsensual tows from private lots conducted with police participation. If the police were instruments of the tow, even at a private owner's request, the constitutional procedures attached.
That meant the participating municipality bore real exposure. A wrongly towed car generated a federal claim against the city, not just against the wrecker company. The AG's "get it in writing" answer was a defensive practice. A signed authorization (1) documented that the owner, not the police, made the substantive decision, and (2) shifted some indemnification risk back to the requesting business.
On the loitering question, the framework was simpler. The criminal trespass statute required notice to the trespasser and a refusal to leave before an arrest. Until the property owner gave that notice or obtained a warrant, the loiterer was not committing a crime. A police officer responding to a generalized "they're hanging around" call had no probable cause to arrest. The owner had to take the first formal step.
Common questions
Did this opinion ban tow trucks from private lots?
No. The opinion addressed police participation in towing. A private property owner could still contract directly with a tow company to remove vehicles, subject to state and local rules on signage, fees, and notice to the vehicle owner. The AG's caution was specifically about police-involved tows requested orally by a business owner.
What did "in writing" mean here in 1981?
A signed authorization, dated, identifying the vehicle and the property, and acknowledging the owner's responsibility for any damages claim. The AG did not prescribe a form. Many cities developed a standardized tow-authorization form for use by businesses with recurring towing needs.
Did the AG say loitering was legal?
No. The AG said police could not arrest a loiterer on private property without a trespass warrant. Loitering on public property under local ordinances was a separate question not addressed in this opinion.
Was this opinion still good law later?
The general framework was, until the NC legislature created the more elaborate private-property tow regime in later decades. The constitutional due-process baseline from Huemmer and Stypmann has only become stronger over time. The trespass-warrant rule for loitering arrests has been refined by case law on the criminal trespass statutes (G.S. § 14-159.13 second-degree trespass).
Source
Citations
- Huemmer v. Ocean City, 632 F.2d 371 (4th Cir. 1980)
- Stypmann v. City & County of San Francisco, 577 F.2d 1338 (9th Cir. 1977)
Original opinion text
Requested By: Chief F. M. Woodley Plymouth Police Department
Questions: Should city police have vehicles towed from private restaurant parking lots upon request of the owner of the restaurant?
- Does the city police department have any obligation to arrest persons loitering in private restaurant parking lots?
Conclusions: No. The city police should not have vehicles towed from private property unless the owner or occupant of the property is willing to put his request for towing in writing. This writing should evidence the intentions of the owner in assuming responsibility for damages arising from the towing.
NOTE: Towing statutes have become suspect after recent cases such as Huemmer v. Ocean City, 632 F.2d 371 (4th Cir. 1980), and Stypmann v. City & Cty. of San Francisco, 577 F.2d 1338 (9th Cir. 1977). Huemmer and Stypmann held that the vehicle operator must be notified and given a hearing on the legality of the towing. If the towing was not justified, the operator has a right to damages and the return of his vehicle.
- No. The city police has no obligation to arrest persons loitering on private property unless the owner of the property secures a warrant.
NOTE: The owner of the property, after making proper requests to leave the premises, may pursue the removal of such loitering persons by executing a warrant for trespassing.
Rufus L. Edmisten
Attorney General
William W. Melvin
Deputy Attorney General