The tow policy of the police department was discretionary (“may tow”) and defendant hadn’t yet been arrested when the decision was made to tow without giving options. Therefore, the government didn’t meet its burden that the decision to tow was within policy. Also, “The Court concludes that four of the five factors listed in United States v. Sanders weigh against the United States and in favor of a finding that Babadi lacked a non-pretextual community-caretaking justification for deciding to impound James’ car.” United States v. James, 2019 U.S. Dist. LEXIS 134814 (D. N.M. Aug. 10, 2019):
In sum, the United States has not carried its burden of proving that standardized criteria guided Babadi’s decision to tow James’ car. The policies on which Babadi supposedly relied did not take effect until more than a year after Babadi stopped James. Although the form on which James’ car’s contents are listed permits James to request that the police not tow his car, provided he release the police from liability, Babadi did not give James the option to make this request, nor did Babadi explain why he did not give James this option. Finally, the policies on which Babadi purportedly relied — although they were not yet in effect — did not limit Babadi’s discretion in any way. The policies permitted, but did not require, Babadi to tow James’ car under certain circumstances, and permitted Babadi to tow the car if “other circumstances or factors allow[ed] for an officer to research alternative methods.” FPD Towing Policy at 3. Standardized criteria did not guide Babadi’s decision to tow James’ car, and Babadi’s decision was therefore unlawful.