Pennie v. City Of Rockford

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

WESTERN DIVISION

Roger Pennie,

Plaintiff,

Case No. 3:19-cv-50120

v.

Honorable Iain D. Johnston

City of Rockford, Illinois, and Timothy

Campbell,

Defendants.

MEMORANDUM OPINION AND ORDER

One of the first rules of writing is to know the audience. When courts enter

orders, they can be writing for many different audiences: the parties, the attorneys,

other courts, future courts and litigants, the public at large, governmental bodies, or

maybe all of these. This opinion is written for a larger audience.

Considerable resources have been expended on this case already. Those

resources include defense counsel’s pretrial litigation, such as discovery and writing

two thoroughly researched and well-crafted briefs. The Court has likewise expended

considerable resources on this case. But all of those resources likely could have been

saved if the City of Rockford Police Department had equipped its officers with body

cameras in 2018.

This case may not have even been filed had the interaction between Officer

Campbell and Roger Pennie been recorded with sound and video. And this case

most certainly would have been resolved sooner with that type of evidence. But, as

discussed in detail in this order, a genuine dispute of material fact exists as to what

was said during this interaction, requiring this case to go to trial: Pennie says one

thing and Campbell says something else. The Court understands that the City of

Rockford has recently equipped its officers with body cameras in late 2021 and early

2022. The Court hopes that this equipment will help eliminate unnecessary

litigation in the future or at least hasten the conclusion of litigation.1

* * *

Plaintiff Roger Pennie brings this action pro se seeking recovery for what he

argues was an unconstitutional seizure of his vehicle. He also asserts a state law

claim of theft. Before the Court is the Defendants City of Rockford, Illinois, and

Officer Timothy Campbell’s motion for summary judgment.2

A. Background

On the morning of January 10, 2018, Officer Campbell observed Pennie

driving his SUV. Pennie had pulled over to make a phone call. But based on Officer

Campbell’s experience as a police officer, the fact that Pennie pulled over suddenly

to the side of the road made Campbell think that Pennie might be driving without a

1 The Court cannot take a position on the public policy implications of equipping police

officers with body cameras. For example, the Court understands that, on the one hand,

body cameras are expensive but, on the other hand, they can help instill trust between a

community and a police department. Those are considerations best left to the political

branches to weigh. The Court merely notes that body cameras have a salutary effect in

litigation.

2 Pennie challenged the impoundment of his vehicle through an administrative hearing. He

then sought judicial review of that adverse decision and then appealed the adverse judicial

review to the Illinois Appellate Court. That state proceeding, however, did not address

Pennie’s concerns under the Fourth Amendment. Indeed, the City of Rockford argued at the

administrative hearing that it was not the proper forum for Pennie to raise his Fourth

Amendment arguments, which the hearing officer agreed with. Pennie v. City of Rockford,

2018 IL App. (2d) 180411-U, ¶¶ 11-12; but see Garcia v. Village of Mount Prospect, 360 F.3d

630, 642 (7th Cir. 2004) (a Section 1983 claim can be joined to a claim for administrative

review).

license. So, he checked the databases and learned that Pennie’s license was

suspended, confirming Campbell’s suspicions. Before performing the search,

Campbell had driven past Pennie to get a good look at him, so when he saw Pennie’s

photo in the database, he knew it was him and that he was driving on a suspended

license. So, Campbell turned around and drove to relocate Pennie, whom he spotted

nearby. Pennie had parked his car on the curb near a friend’s house, and Officer

Campbell pulled up behind him and activated his emergency lights. At this point,

no reasonable person could fault Campbell’s police work.

After Campbell exited his vehicle, Pennie identified himself and admitted to

not having a valid license. Pennie was traveling with a passenger, but that

individual also lacked a valid driver’s license to take control of the vehicle. Because

Pennie had been parked in front of a friend’s house, however, he says that he called

the friend and asked her to take control of the vehicle so that it would not need to be

impounded. But critically for the issue before the Court, Campbell says he was not

informed that anyone was available to take the vehicle. Dkt. 88-2, ¶¶ 40–41. So, to

state the obvious, Pennie swears that he told Campbell that somebody was ready,

willing, and able to relocate the vehicle. In contrast, Campbell swears Pennie never

told him that.

Officer Campbell then issued Pennie a citation under 625 Ill. Comp. Stat. §

5/6-303(a).3 Dkt. 88-2, ¶ 34. Campbell noted later in response to an interrogatory

that Pennie was issued a citation under 725 ILCS 5/107-12(a), which he explained is

3 The Illinois Appellate Court further referred to this as a citation. Pennie v. City of

Rockford Code Hearing Division, 2018 IL App. (2d) 180411-U, ¶ 2.

considered an arrest.4 Dkt. 97-2, ¶ 4. Though the parties dispute whether Pennie

told Officer Campbell that someone was available to take the vehicle, Officer

Campbell impounded the vehicle and had it towed away. Before the vehicle was

towed, Officer Campbell performed an inventory, which he explains was not part of

any investigation, nor did it uncover any incriminating evidence. Dkt. 88-2, ¶ 44.

The crux of this case concerns Officer Campbell’s impoundment of Pennie’s

vehicle. Officer Campbell and the City of Rockford contend that the impoundment

was authorized under state law and Rockford police procedure and that Officer

Campbell had probable cause to arrest Pennie for driving on a suspended license; an

offense that subjects Pennie to possible seizure and forfeiture of his vehicle. Pennie

agrees that Officer Campbell had probable cause, and that state statutory law

provides for the possible forfeiture of his vehicle. He argues, however, that Officer

Campbell did not impound his vehicle as a forfeiture, but as a regular

impoundment, subject to release on the payment of certain fines. Regardless, he

4 The record is insufficient to determine whether Pennie was arrested under Illinois law,

although there is no doubt he was seized for Fourth Amendment purposes. He was issued a

notice to appear, but because “arrest” and “notice to appear” are not mutually exclusive,

they can both be true at the same time, or not. In People v. Bahnfleth, the defendant argued

that he was not arrested, but instead issued a notice to appear under the same Illinois

statute at issue here. 599 N.E.2d 16, 19 (Ill. App. Ct. 1992). But in that case, the defendant

was brought to the police station. Though the defendant was eventually given a notice to

appear, the appellate court explained that a notice to appear and an arrest are not

mutually exclusive and that whether a person is arrested is determined by analyzing

“whether a reasonable man, innocent of any crime, would have concluded that he was not

free to leave considering the surrounding circumstances.” Id. at 18–19. Under those

circumstances, in which he was taken to the police station, an arrest and a notice to appear

both occurred. Id. at 19. Other cases have explained that an arrest can happen “by the

service of a uniform citation.” People v. Mannion, 577 N.E.2d 532, 534 (Ill. App. Ct. 1991).

In this case, the parties disagree whether Officer Campbell in fact arrested Pennie. But the

parties have not sufficiently argued the point and the resolution of that question is not

necessary for the proper disposition of the pending motion for summary judgment.

notes that he had someone available to take the car, so that the impoundment and

inventory was unreasonable under the Fourth Amendment.

B. Legal Standard

On summary judgment, the movant has the burden of showing that “no

genuine dispute as to any material fact” exists and that they are “entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). Material facts are those that

might affect the outcome of the suit. Anderson v. Liberty Lobby Inc., 477 U.S. 242,

248 (1986). No “genuine” dispute exists if a court would be required to grant a Rule

50 motion at trial. Id. at 250–51. The Court must construe the “evidence and all

reasonable inferences in favor of the party against whom the motion under

consideration is made.” Rickher v. Home Depot, Inc., 535 F.3d 661, 664 (7th Cir.

2008). “Summary judgment is only warranted if, after doing so, [the Court]

determine[s] that no jury could reasonably find in the nonmoving party’s favor.”

Blasius v. Angel Auto, Inc., 839 F.3d 639, 644 (7th Cir. 2016). “When video footage

firmly settles a factual issue, there is no genuine dispute about it, and [the Court]

will not indulge stories clearly contradicted by the footage.” Horton v. Pobjecky, 883

F.3d 941, 944 (7th Cir. 2018).

C. Analysis

In this action, Pennie brings three claims. First, he asserts that Officer

Campbell violated his rights under the Fourth Amendment. Second, he claims that

Officer Campbell violated Illinois’ theft statute. And third, he claims

indemnification, such that the City of Rockford would be required to indemnify

Officer Campbell if he is found liable in this action. See Wilson v. City of Chicago,

120 F.3d 681 (7th Cir. 1997). As an initial matter, the Court grants summary

judgment to the Defendants on Pennie’s state law theft claim. Pennie asserts a

claim under 720 Ill. Comp. Stat. § 5/16-1. Dkt. 59, ¶ 99. But this is Illinois’ criminal

theft statute. It is not a civil statute under which a private party can seek redress.

In their motion for summary judgment, the Defendants argue that

impounding Pennie’s vehicle—and thus the subsequent inventory of that vehicle—

was reasonable under the Fourth Amendment. They further contend in the

alternative that Officer Campbell is entitled to qualified immunity, thus leaving

nothing for the City of Rockford to indemnify.

1. Fourth Amendment

Pennie challenges Officer Campbell’s decision to impound his vehicle in

connection with his citation for driving on a suspended license. The Defendants

assert that impounding Pennie’s vehicle was reasonable because (1) Officer

Campbell had probable cause to believe Pennie was driving on a suspended license,

an offense that subjects the vehicle to possible forfeiture; and (2) the impound was

justified in furtherance of the officer’s public safety and community caretaking

function. In United States v. Duguay, the Seventh Circuit explained that

impounding a vehicle “must either be supported by probable cause, or be consistent

with the police role as ‘caretaker’ of the streets and completely unrelated to an

ongoing criminal investigation.” 93 F.3d 346, 352 (7th Cir. 1996). The Defendants

argue that impounding Pennie’s vehicle was reasonable under both justifications

and that they are entitled to judgment as a matter of law.

a. Was the impoundment justified by probable cause?

First, the Defendants contend that the existence of probable cause that

Pennie was driving on a suspended license categorically supplies the necessary

reasonableness for impounding his vehicle under the first Duguay justification.

They argue that probable existed that the vehicle was subject to forfeiture under

Illinois law because Pennie was cited for driving on a suspended license. Dkt. 87, at

3–4.

“Any vessel or watercraft, vehicle, or aircraft is subject to forfeiture if the

vessel or watercraft, vehicle, or aircraft is used with the knowledge and consent of

the owner in the commission of . . . (7) an offense described in subsection (g) of

Section 6-303 of the Illinois Vehicle Code.” 720 Ill. Comp. Stat. § 5/36-1(a)(7).

Subsection 6-303(g) of the Illinois Vehicle Code provides that when a person drives

a vehicle on a suspended license, that vehicle is subject to seizure and forfeiture if

that person’s license was suspended or revoked because of a “statutory summary

suspension or revocation under Section 11-501.1 of this Code or similar provision of

a law on another state.” 625 Ill. Comp. Stat. § 5/6-303(g)(3). Section 11-501.1 is the

statute that contemplates the suspension of a driver’s license in certain

circumstances: “A person requested to submit to a test as provided above shall be

warned by the law enforcement officer requesting the test that a refusal to submit

to the test will result in the statutory suspension of the person’s privilege to operate

a motor vehicle.” 625 Ill. Comp. Stat. § 5/11-501.1(c).

Here, Pennie was cited for driving on a suspended license in violation of 625

Ill. Comp. Stat. § 5/6-303(a). Dkt. 88-2, at 24. That violation subjected Pennie’s

vehicle to possible forfeiture. But the record contains no evidence that the vehicle

was actually forfeited. Instead, the City argued at Pennie’s administrative hearing

that Officer Campbell properly impounded the vehicle under 625 Ill. Comp. Stat. §

5/4-203(e-5). Pennie, 2018 IL App. (2d) 180411-U, ¶ 6. That statute provides for the

temporary seizure (rather than forfeiture) of a vehicle when the driver is driving on

a suspended license if the officer reasonably believes the offender might again drive

the vehicle on a suspended license. The same statute, however, contemplates

releasing the vehicle if the owner gives permission to another individual who is

capable of driving the vehicle. 625 Ill. Comp. Stat. § 5/4-203(e-5). As an alternative,

the City also argued at Pennie’s administrative hearing that the impoundment was

proper under 625 ILCS 5/11-1302(c)(3), which permits law enforcement to remove a

vehicle to the nearest garage “or place of safety” when the driver is arrested, and

the officer is required by law to take the arrestee before a magistrate without

unnecessary delay. Pennie, 2018 IL App. (2d) 180411-U, ¶ 7. (But the undisputed

facts show that Officer Campbell did not take Pennie to a magistrate without delay.

He was instead issued a notice to appear and was free to leave after being issued

the notice to appear.)

The Defendants contend that it doesn’t matter whether the purpose of the

impoundment was as a regular impoundment or as a forfeiture. In support, they

cite Scott v. United States, 436 U.S. 128, 136 (1978) for the proposition that an

officer’s subjective state of mind is irrelevant to the reasonableness inquiry under

the Fourth Amendment. Dkt. 101, at 2. But that case, and others like it, merely

point out that the reasonableness analysis is objective, not subjective. What matters

is not what the officer thought at the time but whether the officer’s actions were

objectively reasonable. Ashcroft v. al-Kidd, 563 U.S. 731, 736 (2011). But Pennie’s

argument that his car was not forfeited—and instead merely impounded—is not a

subjective inquiry. It is a factual determination of what Officer Campbell actually

did, not a subjective inquiry into what he thought or his motivations for doing what

he actually did. The record is clear: Officer Campbell impounded Pennie’s vehicle as

a temporary seizure, subject to release back to Pennie on the payment of certain

administrative fees. Dkt. 88-2, ¶ 28 (noting that police policy and Illinois law allows

impoundment when the vehicle poses a safety hazard, and no one is available to

legally operate the vehicle); Dkt. 88-2, ¶ 31 (further noting that “since the GMC was

not at Mr. Pennie’s home address, I concluded that impounding the GMC was also

in the interest of public safety by promotes [sic] the safe and efficient use of the

roadway”); see also Dkt. 97-2, ¶ 14 (noting that Pennie could have obtained the

vehicle after paying administrative fees and charges); Dkt. 97-3, at 1 (noting that

the vehicle was “eligible for release”); Dkt. 97-4 (impound report noting that no hold

was placed on the vehicle). Thus, the car was not seized under the forfeiture statute,

even if it could have been. It was impounded for community caretaking.5 And

Pennie challenges the constitutionality of what Officer Campbell did, not what he

could have done but chose not to do. Thus, the facts presented in this case do not

invoke the first Duguay justification.

Though not argued by the parties, the Court further notes the ambiguity in

Duguay’s instruction that probable cause can justify the impoundment of a vehicle.

The first question that reasonably comes to mind is “probable cause for what?” In

Duguay, the Seventh Circuit recognized that probable cause can form the basis of a

reasonable impoundment outside of the community caretaking function. Duguay, 93

F.3d at 352 (stressing the need for probable cause or consistency with law

enforcement’s community caretaking function). Contrary to the Defendants’

argument, however, the court did not hold that impoundments are categorically

reasonable under the Fourth Amendment every time the officer has probable cause

to arrest the vehicle’s owner or to take the vehicle as a forfeiture. Indeed, the court

recognized that “[u]nder Illinois law, impoundment is permissible only when the

arrestee was not able to provide for immediate removal of the vehicle.” Duguay, 93

F.3d at 353. And such a categorical rule would not comport with the Supreme

5 Indeed, if the Fourth Amendment reasonableness analysis ended upon a showing that the

officer could have seized the vehicle under a forfeiture statute, then the analysis in Duguay

would have been unnecessary. In that case, U.S. Marshals found 533 grams of cocaine in

the trunk of Duguay’s car, Duguay, 93 F.3d at 349, which would also have subjected his

vehicle to forfeiture. Bell v. City of Chicago, 835 F.3d 736, 740 (7th Cir. 2016). Still, even

when a vehicle is subject to forfeiture, that does not per se end Fourth Amendment

analysis. United States v. James Daniel Good Real Prop., 510 U.S. 43, 52 (1993) (explaining

that the “Fourth Amendment places limits on the Government’s power to seize property for

purposes of forfeiture”).

Court’s instruction that “the Fourth Amendment places limits on the Government’s

power to seize property for purposes of forfeiture.” Unites States v. James Daniel

Good Real Prop., 510 U.S. 43, 52 (1993).

And notwithstanding the possibility of forfeiture, the probable cause

contemplated in Duguay cannot mean the probable cause to arrest a person. If that

were all the officer needed to impound the car, then the Seventh Circuit would not

have contemplated whether an arrestee was able to provide for proper removal of

the car without the need for an impoundment.6 That entire reasoning would be

rendered superfluous. Furthermore, if a police officer could impound a vehicle any

time a person was found driving on a suspended license (and thus subject to arrest

or notice to appear)—regardless of whether another person was available to take

custody of the vehicle—then impoundment of the vehicle for community caretaking

would never be necessary under these circumstances. The entire body of law

stemming from Duguay’s community caretaking justification would be unnecessary

because the arresting officer would never need to invoke that justification.

And again, the probable cause contemplated in Duguay also cannot

reasonably be read to mean categorically all situations in which probable cause

exists that the vehicle is subject to a forfeiture statute. To be sure, law enforcement

may seize vehicles under a forfeiture statute where probable cause exists that the

vehicle is subject to that statute. In United States v. Pace, the Seventh Circuit

explained that the “police may seize a car without a warrant pursuant to a

6 To be clear, law enforcement had found a substantial quantity of crack cocaine in the

trunk of Duguay’s later-impounded car. Duguay, 93 F.3d at 349.

forfeiture statute if they have probable cause to believe that the car is subject to

forfeiture.” 898 F.2d 1218, 1241 (7th Cir. 1990). Probable cause under a forfeiture

statute treats the vehicle “as being itself guilty of wrongdoing.” Id. at 1242 (quoting

United States v. One Mercedes Benz 280S, 618 F.2d 453, 454 (7th Cir. 1980)).

Indeed, in Florida v. White, the Supreme Court held that the seizure of a vehicle

under a Florida criminal forfeiture law did not violate the Fourth Amendment

because “they certainly had probable cause to believe that the vehicle itself was

contraband under Florida law.” 526 U.S. 559, 565 (1999) (emphasis in original). In

part, that decision was based on the “[r]ecognition of the need to seize readily

movable contraband before it is spirited away.” Id.

But that doesn’t mean that the existence of a forfeiture statute ends the

Fourth Amendment reasonableness analysis in all situations, even when the vehicle

in question is not necessary evidence of the crime alleged.7 As the Seventh Circuit

explained in United States v. Cartwright, “The existence of a police policy, city

ordinance, or state law alone does not render a particular search or seizure

reasonable or otherwise immune from scrutiny under the Fourth Amendment.” 630

F.3d 610, 614 (7th Cir. 2010). Instead, the better reading of the “probable cause”

justification of Duguay is that the impoundment is reasonable—without the need to

invoke community caretaking—when the police officer has probable cause to seize

7 To be clear, law enforcement may seize vehicles that are subject to a forfeiture statute

without a warrant. United States v. Pace, 898 F.2d 1218, 1241–42 (1990). But that does not

mean the Fourth Amendment does not apply to forfeiture cases. The seizure must still

satisfy the Fourth Amendment’s touchstone: reasonableness. South Dakota v. Opperman,

428 U.S. 364, 373 (1976).

the vehicle under a forfeiture statute because the vehicle itself is considered

necessary evidence that needs to be secured under that forfeiture statute. White,

526 U.S. at 564-55, 566. This is in stark contrast to impoundment under the

community caretaking function, which does not permit impoundment for the

purpose of ongoing criminal investigation. Caniglia v. Strom, 141 S. Ct. 1596, 1600

(2021) (Kavanaugh, J., concurring) (explaining that “community caretaking” is not

an overarching or freestanding doctrine but merely refers to “the many police tasks

that go beyond criminal law enforcement”); Cady v. Dombrowski, 413 U.S. 433, 441

(1973) (referring to community caretaking function as “totally divorced from the

detection, investigation, or acquisition of evidence relating to the violation of a

criminal statute”).

In this case, the record contains no evidence that Pennie’s car was impounded

as part of an ongoing investigation; that it was considered evidence of a crime. In

other words, the Defendants have not pointed to any evidence that Officer Campbell

impounded Pennie’s vehicle on the basis that it was subject to forfeiture because the

vehicle itself was considered evidence in need of preservation. Instead, the

Defendants merely argue that state law permits impoundment, and so it must be

reasonable under the Fourth Amendment. But state law cannot supersede a

constitutional provision, and the argument the Defendants press would amount to a

categorical rule that cannot exist in light of United States v. Duguay and United

States v. Cartwright. See Thompson v. Village of Monee, 110 F. Supp. 3d 826, 847

(N.D. Ill. 2015). Instead, Officer Campbell impounded Pennie’s car under state and

local rules that contemplated the community caretaking function of law

enforcement.8

b. Was the impoundment justified as community caretaking?

The second justification for impounding a vehicle that the Seventh Circuit

contemplated in Duguay is when the impoundment is consistent with the officer’s

duty as a community caretaker. Duguay, 93 F.3d at 352. In that case, the Seventh

Circuit explained that the “policy of impounding the car without regard to whether

the defendant can provide for its removal is patently unreasonable if the ostensible

purpose for impoundment is for the ‘caretaking’ of the streets.” Id. at 353. Here, the

ostensible reason for impounding Pennie’s car was for community caretaking, as

explained above. It was not seized as a forfeiture. Thus, the Court cannot determine

whether the impoundment of Pennie’s care was reasonable under the Fourth

Amendment without an analysis of whether he told Officer Campbell that he had

someone available to take custody of the vehicle and move it off the street. This

point was further explained later by the Seventh Circuit.

In United States v. Cartwright, Cartwright’s car was impounded after the

police officer acted on probable cause and arrested him; he told the officer he didn’t

have a driver’s license on him and then gave a name that couldn’t be verified. (It

8 The Defendants in reply further pointed out that the paperwork would have been same

regardless of whether Officer Campbell impounded Pennie’s car or seized it as a forfeiture.

Dkt. 101, at 7 (“Thus, Officer Campbell would not have employed a different procedure or

issued different documents to impound plaintiff’s vehicle under the forfeiture statute.”). But

regardless of whether the same form is used, the documentation in the record clearly

indicates that Pennie’s vehicle was impounded subject to release and without any hold. As

explained above, it was undisputedly not seized as a forfeiture.

was an alias.) 630 F.3d at 612. The court explained that impounding the vehicle was

done in accordance with the police department’s formal policy. Following those

procedures, however, was not dispositive. Instead, the court relied on the fact that

Cartwright and his passenger had no immediately available alternative means of

removing the car from that location. Id. at 615. Critically, that determination was

made after the district court had held an evidentiary hearing to settle the question

of fact regarding whether someone was available to take custody of the vehicle and

move it from the roadway. Id.

In this case, the parties dispute whether Pennie told Officer Campbell that he

had someone immediately available to take custody of the vehicle. In their opening

brief, the Defendants asserted that the record contained no evidence to support that

allegation. That may have been true at the time of the filing. But, in response to the

motion for summary judgment, Pennie supplied all the evidence he needed—an

affidavit swearing that someone was in fact available to move the vehicle and that

he told Campbell this. Dkt. 97-8, at 1-2. Specifically, Pennie submitted an affidavit

attesting that he told Officer Campbell that someone was available to take the car,

so that impounding his vehicle would not be necessary or reasonable. Dkt. 97-8, at

1–2. A genuine dispute of material fact exists preventing summary judgment.

The Court could stop there, because that dispute on its own requires that the

Court deny summary judgment. But the Court further notes that the Defendants’

argument also relied on the idea that the vehicle was parked illegally, in violation of

a city ordinance, and that Rockford Police Department policy allowed for the

impoundment. Multiple problems torpedo that contention. First, that same police

policy permits impoundment under these circumstances only when no one is

available to take custody of the vehicle. Dkt. 88-2, at 17 (noting that impoundment

is proper, among other options, when the “vehicle is a traffic hazard and no

responsible party can be contacted” and when the “driver is arrested and the vehicle

cannot be legally parked or “there is no one available or legally able to drive the

vehicle”). Thus, that policy specifically contemplates the factual dispute at issue

here. Second, the video evidence in the record establishes that Pennie’s car was

parked on the curb, just like the other cars in the video. The Defendants argue that

Pennie’s car was impeding “the free flow of two-way traffic on the relatively narrow

roadway due to the presence of snow and ice.” Dkt. 87, at 7. But (being generous to

the Defendants) that is not undisputed either. The police dashcam video shows that

snow and ice had accumulated on the ground. The video shows snow on the grass.

But, contrary to the Defendants claim, the video shows that the street was clear of

snow and ice. The Court strains to see how Pennie’s vehicle was impeding the flow

of traffic at all. A genuine issue of material fact exists as to whether Pennie’s

vehicle “impeded the free flow of two-way traffic.” Dkt. 87, at 7. So, summary

judgment cannot be entered.

D. Qualified Immunity

Lastly, the Defendants argue that Officer Campbell is entitled to qualified

immunity. If he is, then the City of Rockford would have nothing to indemnify. “The

doctrine of qualified immunity shields officers from civil liability so long as their

conduct ‘does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.’” City of Tahlequah v. Bond, 142 S.

Ct. 9, 11 (2021) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). That

presents two questions: whether the evidence, taken in the light most favorable to

the plaintiff, supports a finding that the defendant violated the plaintiff’s

constitutional rights; and (2) whether that right was clearly established at the time

of the alleged violation. Day v. Wooten, 947 F.3d 453, 460 (7th Cir. 2020). Either

question may be dispositive, and so they do not have to be addressed in order.

Pearson, 555 U.S. at 236. But, once properly raised, the plaintiff bears the burden of

defeating qualified immunity. Hardeman v. Curran, 933 F.3d 816, 820 (7th Cir.

2019).

In determining whether a right is clearly established, existing precedent may

not merely suggest a rule. Instead, the “rule’s contours must be so well defined that

it is ‘clear to a reasonable officer that his conduct was unlawful in the situation he

confronted.’” Id. (quoting District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018)).

Although the plaintiff need not point to a case directly on point, “existing precedent

must place the lawfulness of the particular arrest ‘beyond debate.’” Wesby, 138 S.

Ct. at 590. The focus in a qualified immunity analysis, “is on whether the officer

had fair notice that [his] conduct was un-lawful.” Taylor, 10 F.4th at 806 (quoting

Balsewicz v. Pawlyk, 963 F.3d 650, 656–57 (7th Cir. 2020)).

The Defendants assert that no Supreme Court or Seventh Circuit case law

existed at the time of the purported violation that would have put Officer Campbell

on notice “that it was unconstitutional to: (1) impound a vehicle subject to forfeiture

under state law; or (2) impound a vehicle parked illegally, which posed a threat to

public safety, when the vehicle owner did not identify a specific individual, at the

scene, who was licensed to drive the vehicle.” Dkt. 87, at 12. The twin decisions of

Duguay and Cartwright doom the first point. And the genuine dispute of fact

created by Pennie’s affidavit negates the second point.

In support of their argument, the Defendants cite two recent district court

cases that contemplated similar circumstances. First, they cite Simmons v.

Bloomington Police Dep’t, No. 18-1429, 2021 U.S. Dist. LEXIS 7744, at *10 (C.D. Ill.

Jan. 14, 2021). In that case, the officer had probable cause to believe the plaintiff

had driven his vehicle without a license, though the plaintiff adamantly protested

that he did not. Nonetheless, the court determined that the existence of probable

cause that the plaintiff had committed an offense that could subject his vehicle to

forfeiture was per se enough to make the impoundment reasonable under the

Fourth Amendment. And because no clearly established constitutional right had

been violated, the defendant was entitled to qualified immunity. Id. at *10–11. With

respect, however, this Court declines to follow that reasoning. As explained above,

such a categorical rule is not consistent with Duguay, Cartwright, or the Supreme

Court’s admonition that “the Fourth Amendment places limits on the Government’s

power to seize property for purposes of forfeiture.” James Daniel Good Real Prop.,

510 U.S. at 52. Indeed, the Simmons decision did not even cite Duguay or

Cartwright.

The Defendants next cite to Hardiman v. Chief of the Indianapolis Metro.

Police Dep’t, No. 1:18-cv-00348, 2021 U.S. Dist. LEXIS 110814, at *17 n.12 (S.D.

Ind. June 11, 2021). In Hardiman, the plaintiffs argued that because someone was

available to move the car, law enforcement was required to allow that person to

move the vehicle instead of merely impounding it. The plaintiffs argued that

Duguay clearly established the right, so that qualified immunity did not apply. Id.

at *13–14. In holding that qualified immunity protected law enforcement, the

Hardiman court explained that, unlike Duguay, law enforcement knew that

Hardiman was not the registered owner of the car and could not lawfully give

anyone permission to remove it. Id. at *17. Based on that material difference, the

Hardiman court held that Duguay was not sufficiently analogous, so that it could

have clearly established a right under qualified immunity doctrine.

Here, the facts taken in the light most favorable to Pennie are more closely

analogous to Duguay and Cartwright, which expanded Duguay. In Duguay, which

has already been discussed at length, the Seventh Circuit further used broad

language to explain that, under Illinois law, impoundment is only permissible when

the arrestee cannot provide for immediate removal of the vehicle. And under the

Fourth Amendment, impounding a car without regard for a person’s ability to safely

remove it to avoid impoundment is patently unreasonable if the “ostensible

purpose” was community caretaking. Id. at *18–20. But that court also found

important the fact that the police department had not promulgated written rules

governing the impoundment of vehicles. Id. at *15. Thus, Duguay left open for

debate the question of whether impoundment was reasonable under the Fourth

Amendment when an officer followed police department policies and procedures.

Cartwright answered the question left unresolved by Duguay. In that case,

Cartwright was pulled over by an Indianapolis police officer, he failed to produce a

driver’s license and gave a false name. Cartwright, 630 F.3d at 612. Following police

policy and procedure, the officer arrested Cartwright and had the car towed. The

passenger did not have a driver’s license. Id. The passenger asked the officers if she

could find someone else to move the vehicle, as she couldn’t afford the fees to get the

car out of impound. They refused. Id. at 613. Though the police officer followed

policy and procedure, the Cartwright court found that fact alone was not dispositive

of the Fourth Amendment analysis. Id. at 614. “The existence of a police policy, city

ordinance, or state law alone does not render a particular search or seizure

reasonable or otherwise immune from scrutiny under the Fourth Amendment.” Id.

In so holding, the Seventh Circuit cited the Supreme Court’s decision in Sibron v.

New York, in which the Court held, “The question in this Court upon review of a

state-approved search and seizure is not whether the search (or seizure) was

authorized by state law. The question is whether the search was reasonable under

the Fourth Amendment.” 392 U.S. 40, 61 (1968).

The Cartwright court then noted that the decision to impound Cartwright’s

car not only adhered to police policy but critically it was also reasonable under the

circumstances. The key fact in that case, however, was that no licensed driver was

present on scene at the time to speedily and efficiently remove the vehicle.

Cartwright, 630 F.3d at 615.

Taken together, these cases clearly establish that merely following state

statute and police rules regarding impoundment of vehicles does not per se end the

Fourth Amendment analysis. Instead, the decision to impound must still be

reasonable under the circumstances. That includes the right to safely and efficiently

remove the vehicle from the roadway, if a licensed driver is present on the scene

that the owner of the vehicle can give permission to—though law enforcement

clearly does not have to sit around waiting for someone to materialize. Id. at 615

(“At the evidentiary hearing, [the passenger] testified that she called ‘someone’ to

come and pick up the car, but she never identified that person or stated how long it

would have taken him/her to get there.”). In 2015, Judge St. Eve summed up the

law neatly: “[T]he case law provides for reasonable seizure (impound) of a vehicle,

absent probable cause, in cases where the vehicle was left in a parking lot or parked

illegally or no one else could legally take the vehicle to a safer location.” Thompson,

110 F. Supp. 3d at 848.

Thus, if Pennie had a licensed individual available at that moment to take

custody of the vehicle and safely remove it, Duguay and Cartwright together clearly

establish his right to avoid impoundment. That, however, is a genuine dispute of

material fact. As explained above, Pennie submitted a proper declaration that he

told Officer Campbell that someone was available to take the car—not that she

could be called, but that she was on scene. According to Pennie, she was apparently

in eyeshot, standing in her front yard directly across the street. That presents a

genuine dispute of material fact for the jury. But for the purposes of qualified

immunity, the Court must accept Pennie’s version of the facts as true. Doing that,

Officer Campbell was not qualifiedly immune.

EK. Conclusion

Thus, the Court grants summary judgment to Defendants on Pennie’s state-

law theft claim. But the Defendants’ motion for summary judgment on Pennie’s

unlawful seizure claim is denied. In denying the motion, however, the Court is not

stating an opinion on the merits of the case. Rather, the Court merely holds that

genuine disputes of material fact exist, and so summary judgment is not

appropriate. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). This case is

referred to Magistrate Judge Schneider to discuss whether a settlement conference

would be a useful exercise. If settlement is unlikely, then the parties can begin

preparing the Final Pretrial Order.

Date: February 3, 2022 SS.

Honorable Iain D. Johnston

United States District Judge

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