Gates v. City of Chicago

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-1455

E LTON G ATES and L USTER N ELSON,

Plaintiffs-Appellants,

v.

C ITY OF C HICAGO, P HILIP J. C LINE,

JAMES E CHOLS, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 C 2155—Ruben Castillo, Judge.

A RGUED A PRIL 14, 2009—D ECIDED S EPTEMBER 27, 2010

Before K ANNE, R OVNER and W OOD , Circuit Judges.

R OVNER, Circuit Judge. Persons who are arrested by

Chicago police officers often are carrying small amounts

of cash which the officers seize 1 and inventory at the

1

The plaintiffs say the money was “seized” and the City says

it was “recovered.” The district court doubted there was any

(continued...)

2 No. 08-1455

time of arrest. The plaintiffs here were arrestees from

whom police officers confiscated small amounts of cash.

The arrestees unsuccessfully sought the return of their

money and challenged the City’s policies governing the

return of seized funds. They also challenged the notice

the City provided of those policies. The district court

granted summary judgment to the City on the plain-

tiffs’ federal due process claims and dismissed their

state law restitution claims as moot. The plaintiffs

appeal and we affirm in part, and vacate and remand

in part.

I.

Chicago police officers arrested Elton Gates for aggra-

vated battery, in violation of 720 ILCS 5/12-4(b)(6), and

Luster Nelson for manufacture or delivery of crack

cocaine in violation of 720 ILCS 570/401(c)(2). The

officers seized $113 in cash from Gates at the time of

his January 14, 2003 arrest, and $59 from Nelson on

1

(...continued)

difference. Gates v. Towery, 507 F.Supp.2d 904, 915 (N.D. Ill.

2007) (hereafter “Gates II”). We agree with the district court.

The City’s position is curious in light of its reliance on 725 ILCS

5/108 et seq. as providing adequate procedures for the return

of the money. The relevant parts of Section 108 address the

“Custody and Disposition of Things Seized,” 725 ILCS 5/108-2;

the “Return to Court of Things Seized,” 725 ILCS 5/108-10; and

the “Disposition of Things Seized,” 725 ILCS 5/108-11 (emphasis

added).

No. 08-1455 3

February 4, 2004. Under procedures in place at the

Chicago Police Department at that time, each man was

issued 2 a property inventory receipt that listed the prop-

erty seized, a court date, the charges, and the names

and star numbers of the police officers effecting the

seizures. In each instance, the officer filling out the in-

ventory receipt indicated that the property would be

held “for investigation and/or evidence.” Although the

format of the inventory receipts changed slightly be-

tween the time Gates was arrested in 2003 and Nelson

was arrested in 2004, one part of the form stayed essen-

tially the same: the right-side column labeled “Notice

to Property Owner or Claimant,” which we will refer to

as the “Notice.” 3

2

Although neither side is precise in describing how the

inventory receipt is issued to the arrestee, we gather that the

receipt is physically handed directly to the arrestee at the

time the property is taken and inventoried. The face of the

receipt directs the officer to “give this copy to arrestee.”

3

Both Gates’ and Nelson’s receipts contain the “Notice to

Property Owner or Claimant.” Inexplicably, the district court

found that Nelson’s receipt did not contain the Notice, even

though both sides agree, and our review confirms, that

Nelson’s receipt does in fact contain the Notice. See Gates II, 507

F.Supp.2d at 911 n.2. We can only assume the district court

was viewing some other version of the receipt. At oral argu-

ment, the City explained that the copy of the inventory receipt

provided to the state court judge differed from the form

provided to the arrestee. It is possible that the district court

judge was viewing the copy normally given to the state

(continued...)

4 No. 08-1455

In relevant part, the Notice states:4

Property Release Order (CPD-34.554) Required

Return to the police station where your property

was taken from you. Give this copy to the desk

officer in charge for forms and instructions neces-

sary for the return of your property.

Upon official notification that inventoried property

is available for release, the subject owner or claimant

must pick up the property within 30 days of notifica-

tion or the property will be legally disposed of ac-

cording to the direction of the law.

****

3

(...continued)

court judge and that the Notice was omitted from that copy.

This is but one instance of the confused state of the record, and

it is a significant one; it would be impossible for the district

court to judge the adequacy of notice when the substance of

the notice was uncertain.

4

The Notice is printed almost entirely in all capital letters,

except for two citations to Illinois Statutes. Indeed, even the non-

Notice parts of the inventory form appear in all capital letters.

For ease of reading, we will use a more conventional format.

We are also omitting a paragraph in the middle of the Notice

which is not relevant to the issues here and which neither

side cites. Finally, there is some testimony in the record that

there is a box to the left of the “Property Release Order (CPD-

34.554) Required” line that officers check when that form is

required. The box is not visible on any of the photocopies

that appear in the record and no check mark is visible on

either plaintiff’s form.

No. 08-1455 5

Arrestee Information

Seizure without search warrant—(Ill. Rev. Stat. Chap.

38, Sec. 108-2): (725 ILCS 5/108-2)

Give this copy to arrestee. If not accepted, attach to

Copy 5.

Seizure with search warrant—(Ill. Rev. Stat. Chap 38,

Sec. 108-10) (725 ILCS 5/108-10)

Attach this copy to search warrant.

R. 214-2, Ex.2 (“Gates Receipt”) and Ex. 3 (“Nelson Re-

ceipt”).5

Gates later pled guilty to aggravated battery of a

police officer and was sentenced to two years’ proba-

tion. After unsuccessfully seeking the return of his $113,

Gates filed a class action law suit against the City of

Chicago, the Superintendent of the Police Department

(then Philip Cline, and now Jody Weis), and the officers

involved in his arrest.6 Gates alleged that the notice

given on the inventory receipt was misleading because

it advised arrestees that they would be notified when

5

There is one minor difference. The sentence reading, “If not

accepted, attach to Copy 5,” appears on the form for Gates

but is absent from the form for Nelson. This sentence is irrele-

vant to the issues presented on appeal and is not cited by

either side.

6

The plaintiffs do not appeal the judgment granted in favor

of the individual defendants. We will refer to the remaining

defendant as “the City.”

6 No. 08-1455

their property was available for release but the City

never sends such a notice and he did not receive one.

He also alleged that he went to the City of Chicago’s

Evidence and Recovered Property Section (“ERPS”)

several times between July 2003 and February 2004,

each time demanding the return of his money. On each

occasion, he was told by a Chicago police officer that

he could not retrieve his property unless he secured a

signed release from the arresting officer. Gates asserted

that he repeatedly attempted to secure a signed release

from the arresting officers but was told every time that

the officers were not available and that no one else

could authorize the release of his property.

The charges against Nelson were dismissed approxi-

mately one month after his arrest. Nelson’s experience

seeking the return of his money paralleled that of

Gates. Like Gates, he alleged that he went to ERPS

several times and was told he needed a release order

from the arresting officer before his money would be

returned to him. Like Gates, he sought out the ar-

resting officers on multiple occasions but the officers

were unavailable. He sued the City, the Superintendent

and the arresting officers alleging that the notice on the

inventory receipt was misleading because it indicated

he would be notified when his property was ready

for release even though the City never issues such a

notification and he did not receive one.

Both Gates and Nelson asserted that they were

deprived of their property without due process of law

because: (1) the defendants seized the property and

No. 08-1455 7

retained it for months without instituting forfeiture pro-

ceedings wherein they could establish their right to

the return of their property; (2) the inventory receipt

falsely represented that they would be notified when

their property was available for release; (3) the de-

fendants continued to retain the property after con-

clusion of the criminal proceedings even though there

was no basis in law or fact to seek forfeiture of the

funds at that point; (4) after seizing property without

prior judicial authorization, the defendants retained the

property without seeking forfeiture or simply returning

the property; and (5) the City’s policy to retain seized

property, to provide a false and misleading inventory

receipt, and to refuse to promptly return the property

at the conclusion of criminal proceedings is designed

to delay the return of non-forfeitable property to its

rightful owners. For these alleged violations of 42 U.S.C.

§ 1983 (hereafter “Section 1983”), both plaintiffs sought

the return of their property, unspecified reasonable

damages, and an award of costs and reasonable attor-

neys’ fees. The defendants also sought to certify a class

of persons arrested after March 23, 2002, from whom

the defendants seized property pursuant to the City’s

policy. Gates and Nelson later added state law claims

for conversion, replevin, unjust enrichment and construc-

tive trust, among other things, seeking damages and

the return of their money.

Two days after Gates filed suit, the General Counsel

to the Superintendent of Police sent a check for $113 to

Gates’ attorney with a letter offering to pay interest.

8 No. 08-1455

Gates’ attorney returned the check. Approximately one

month after Nelson was added as a plaintiff, the General

Counsel sent a check for $59 to counsel for Nelson

(both men are represented by the same attorney), also

accompanied by a letter offering to pay interest. The

plaintiffs’ lawyer returned that check as well.

The district court eventually certified two classes of

persons who, between March 23, 2002 and December 14,

2004, had property taken from them at the time of

their arrests, whose criminal cases had been resolved in

the trial court, where no forfeiture action had been

initiated and the time for filing a forfeiture action had

expired, where the property was not inventoried as

evidence in any criminal investigation, where the

arrestee was issued an inventory receipt that indicated

the arrestee would be notified when the property was

available for release, and where the money had not

yet been returned to the arrestee. One class consisted

of narcotics arrestees and the other class was comprised

of persons arrested for offenses not related to narcotics.

The defendants petitioned for interlocutory review of

the class certification. We granted that petition and af-

firmed. See Gates v. Towery, 430 F.3d 429 (7th Cir. 2005)

(hereafter “Gates I”).

In Gates I, we rejected the City’s argument that class

certification was improper because the case was

mooted by the City’s offer to return the funds to the

named plaintiffs. We agreed with the district court that

the claims of the class representatives were not moot

because the City’s tender to Gates and Nelson was incom-

No. 08-1455 9

plete. The plaintiffs sought for themselves (and the

class) the return of the seized property, prejudgment

interest, compensatory damages for any injury attrib-

utable to the loss of the property’s use, and compensa-

tion for the value of their time spent trying to retrieve

their property. We noted that a tender is insufficient

unless it makes a plaintiff whole and thus must include

filing fees and other costs. 430 F.3d at 431. We also

noted that a promise of interest later is not the same as

cash today, especially in light of the City’s history of delay

in making payments. As for compensatory damages,

we remarked that a person whose rights have been vio-

lated under the due process clause may receive nom-

inal damages if he or she cannot show out-of-pocket loss

or other concrete injury. Yet the City offered nothing for

fees and costs of filing the suit, nothing for compensatory

damages (not even a dollar for nominal damages),

and only a promise of interest, to which a “prudent

litigant may attach a steep discount,” especially because

the City denied owing interest but offered to pay it only

as a good will gesture. 430 F.3d at 431. To eliminate

the controversy and render the case moot, we held that

a defendant must meet the plaintiff’s demands, which

the City here was unwilling to do. To the extent the

plaintiffs sought an injunction requiring the City to

compensate them for past losses, we remarked that

they were on a snipe hunt. “There’s no such animal,

beyond the equitable remedy of restitution—and the

City stands ready to hand over the amounts it seized,

in order to avoid unjust enrichment.” 430 F.3d at 432.

We concluded that Gates and Nelson were adequate

10 No. 08-1455

representatives to challenge the City’s old policies and

practices and that the suit could proceed as a class action.7

After we affirmed the class certification, the plaintiffs

were granted leave to file a fifth amended complaint.

The first three counts were individual and class claims

for violations of due process. The remaining counts

were grounded in state law and included individual and

class claims for conversion, replevin, unjust enrichment,

constructive trust, declaratory judgment under the

Illinois Uniform Disposition of Unclaimed Property Act

(“UDUPA”), and breach of fiduciary duty. For the

unjust enrichment, constructive trust, and breach of

fiduciary claims (collectively the “restitution claims”),

the plaintiffs sought the return of their money. Ulti-

mately, the district court dismissed the restitution

claims and denied a request to certify a restitution class

because those claims were moot. The court also granted

summary judgment in favor of the City on the federal

due process claims. The plaintiffs appeal.

II.

On appeal, the plaintiffs contend that the City was

not entitled to summary judgment on the due process

claims because the City did not provide meaningful

7

On December 14, 2004, the Chicago Police Department

modified the inventory form. The class action here includes

only persons arrested before that date, during the time the

prior form was in use.

No. 08-1455 11

notice of its inventory and property return procedures,

and because the City failed to provide adequate pro-

cedures for the return of their money. The plaintiffs

also challenge the dismissal of their restitution claims

and the refusal to certify a restitution class, arguing that

the named plaintiffs retained an economic interest in

class certification. Our review of all of the issues is

de novo. Lobzun v. United States, 422 F.3d 503, 507 (7th

Cir. 2005) (we review de novo whether the govern-

ment’s notice procedures complied with due process);

Everroad v. Scott Truck Systems, Inc., 604 F.3d 471, 475

(7th Cir. 2010) (we review de novo the district court’s

grant of summary judgment).

A.

We begin with the issue of meaningful notice. Both

the district court and the parties divide the notice

claims into two categories: narcotics arrests and non-

narcotics arrests. As the district court noted, state law

entitles all arrestees to an inventory of the items seized

from them. See 725 ILCS 5/108 et seq. Section 108-2 pro-

vides what is to be done when property is seized with-

out a warrant. 725 ILCS 5/108-2. Section 108-10 provides

the procedure when property is taken pursuant to a

warrant. 725 ILCS 5/108-10. In each instance, the police

officers are required to take an inventory of the items

seized, and the person from whom the items were

seized is entitled to a copy of that inventory. 725 ILCS

5/108-2 and 725 ILCS 5/108-10. To satisfy this require-

ment, the City provides arrestees with the property

12 No. 08-1455

inventory receipt we describe above, and on each receipt

is printed the Notice (quoted supra at 4-5) that purports to

describe what arrestees should do in order to reclaim

their property. The parties seem to agree that thousands

of inventory receipts were issued for cash each year

during the relevant time period, and the value of cash

seized and inventoried was millions of dollars.

Those arrested on narcotics charges receive an addi-

tional notice. By virtue of a consent decree entered in

an earlier federal suit between an arrestee and the City,

Pollard v. Daley, Case No. 87 C 2401, narcotics arrestees

are entitled to a “Pollard Notice,” a Claims Letter

mailed by the City within ninety days of the arrest, in-

forming the arrestee of the procedure to claim their

seized property. Under the terms of the Pollard consent

decree, narcotics arrestees could retrieve their money

by taking the Claims Letter to the ERPS between 8 a.m.

and 4 p.m., Monday through Friday. The Pollard notice

was mailed to narcotics arrestees at the address listed

on the inventory receipt, which narcotics arrestees also

received. Non-narcotics arrestees received only the in-

ventory receipt we have described.

For both narcotics and non-narcotics arrests, the inven-

tory receipt lists three possible dispositions for seized

funds: (1) “hold for investigation and/or evidence,” in

which case the name and star number of the investigating

officer are listed; (2) “property owner notified . . . to

pick up property within 30 days or property will be

disposed of”; or (3) “to be disposed of by custodian (not

to be returned).” For both Gates and Nelson, the officers

No. 08-1455 13

completing the form checked the “hold for investiga-

tion and/or evidence” box, even though the money

taken from them was soon deposited into bank accounts

(the City has one account for narcotics arrests and

another for non-narcotics arrests) where it was co-mingled

with other funds and thus lost any forensic value as

evidence. Moreover, in each case, the arresting officers

engaged in no further investigation related to the

money seized.

The City acknowledges that when the “hold for investi-

gation” box is checked in non-narcotics cases, the money

seized will not be made immediately available to the

arrestee even if the arrestee follows the instructions

(such as they are) in the Notice. However, nothing on

the inventory receipt notifies arrestees in this category

of this fact, and the Notice gives the arrestee no clue as

to what additional steps he must take in order to

reclaim his property. According to the City, an arrestee

in the non-narcotics category may retrieve seized funds

in one of two ways. He may present to the ERPS either

a criminal court order stating that the funds may be

released (a “Section 108 Order”) or a completed Property

Release Order (CPD-34.554), which is known in the

police department as a “Form 54.” To obtain a com-

pleted Form 54, an arrestee must return to the district

of arrest and present the inventory receipt to the

desk sergeant, who, in turn, will attempt to connect the

arrestee with the arresting officer. Only the arresting

officer can certify on a Form 54 that the property is

no longer needed for investigation or evidence. Both

plaintiffs were told they needed a signed Form 54 and

14 No. 08-1455

both tried repeatedly to contact their arresting officers

and were unable to do so. A Section 108 order may be

issued by the judge presiding over the arrestees’ criminal

case. The City presumes the arrestee must request

the order by filing a motion in the criminal case, char-

acterizing the request as a de minimis burden. The City

does not describe how an arrestee may obtain a Sec-

tion 108 order when no criminal charges are filed or

when the charges are quickly dropped.

For narcotics arrests, the process is more complicated.

As we noted, narcotics arrestees receive both an inven-

tory receipt and, in theory, a Pollard notice. The Asset

Forfeiture Unit (“Unit”) of the Police Department mails

the latter to the address listed for the arrestee on the

inventory receipt, even though many arrestees will

surely not be home when the Pollard notice arrives

because a predictable percentage of them will not

be released on bail and instead will be detained in jail

pending trial. The Unit mails Pollard notices only when

the amount seized is less than $1000, the City has

declined to seek forfeiture (and the City automatically

declines to seek forfeiture when the amount is less than

$130), and the money is available to be returned to the

arrestee. As with non-narcotics arrestees, when the

“hold for investigation box” is checked, the money will

not be returned immediately to the arrestee even if he

follows the instructions in the Notice. According to the

City, narcotics arrestees may reclaim their funds by

presenting to the ERPS proper identification and either

the Pollard notice, a notice from the State’s Attorney’s

Office following settlement of any forfeiture action, or

No. 08-1455 15

an order from the asset forfeiture court stating that

the funds may be released. The plaintiffs asserted that

narcotics arrestees could retrieve their funds only by

presenting proper identification, the Pollard notice and

either an order from the asset forfeiture court or a com-

pleted Form 54. The City concedes it will not honor a

Section 108 order in a narcotics case in the absence of

a Pollard notice, a letter from the state’s attorney or an

order from an asset forfeiture court. On summary judg-

ment, we accept the version of the facts supplied by

the party opposing judgment, so we will assume that

narcotics arrestees were required to present the Pollard

notice and an additional document in order to claim

their money. The plain language on the face of the

Notice supports this claim; it declares without qualifica-

tion that Form 54 is “required.”

We turn, then, to whether the notice given to the plain-

tiffs was adequate to satisfy due process concerns. Both

plaintiffs contend that the notice given on the inventory

receipt is misleading and therefore inadequate. Both

contend that the form lulls the recipient into waiting for

an official notice that never comes instead of describing

the City’s actual procedures. Nelson does not chal-

lenge the contents of the Pollard notice sent to narcotics

arrestees but protests that the City failed to make rea-

sonable efforts to deliver the Pollard notice to affected

arrestees. Nelson, a narcotics arrestee, did not receive

the Pollard notice due to him and therefore had only the

Notice on the inventory receipt to guide him. We will

therefore begin with the notice given on the inventory

receipt, which was given to all arrestees from whom

money was seized.

16 No. 08-1455

1.

The City contends that the Notice on the inventory

receipt is adequate under City of West Covina v. Perkins,

525 U.S. 234 (1999). In West Covina, the Court considered

“whether the Constitution requires a State or its local

entities to give detailed and specific instructions or

advice to owners who seek return of property lawfully

seized but no longer needed for police investigation or

criminal prosecution.” 525 U.S. at 236. The property

involved was seized from a home during execution of a

valid search warrant. The police officers executing the

warrant seized photographs, guns, ammunition and

cash. They left the home’s occupants a form titled,

“Search Warrant: Notice of Service” (hereafter “Warrant

Notice”), along with an itemized list of the property

seized. 525 U.S. at 236. In its entirety, the Warrant Notice

read:

TO WHOM IT MAY CONCERN:

1. THESE PREMISES HAVE BEEN SEARCHED BY

PEACE OFFICERS OF THE (name of searching

agency) West Covina Police DEPARTMENT PURSUANT

TO A SEARCH WARRANT ISSUED ON (date) 5-20-93,

BY THE HONORABLE (name of magistrate) Dan

Oki, JUDGE OF THE SUPERIOR/MUNICIPAL COURT,

Citrus JUDICIAL DISTRICT.

2. THE SEARCH WAS CONDUCTED ON (date)

5-21-93. A LIST OF THE PROPERTY SEIZED PURSU-

ANT TO THE SEARCH WARRANT IS ATTACHED.

3. IF YOU WISH FURTHER INFORMATION, YOU

MAY CONTACT:

No. 08-1455 17

(name of investigator) Det. Ferrari or Det. Melnyk

AT [telephone number].

LT. SCHIMANSKI [telephone number].

525 U.S. at 236-37. Although the officers did not leave

the warrant number, that information was available in

a public index. Shortly after the search, Perkins, the

property owner, called one of the detectives listed on

the Warrant Notice seeking the return of the seized

items. The detective told him that he would need to

obtain a court order authorizing the return of the prop-

erty. 525 U.S. at 237. Perkins then went to the court-

house and attempted to see the judge who issued the

warrant. When he learned that the judge was on vacation,

he tried to ask another judge to release his property but

was told the court had nothing under Perkins’ name.

Perkins then filed suit against West Covina and the

officers who seized his property, alleging violations of

the Fourth Amendment. The district court granted sum-

mary judgment to West Covina and its officers but

invited supplemental briefing on whether the available

remedies for the return of seized property were ade-

quate to satisfy due process. West Covina, 525 U.S. at 238.

The district court subsequently found that the remedies

provided by California law for the return of seized prop-

erty satisfied due process. The court of appeals reversed.

Although the appellate court agreed that state law pro-

vided adequate procedures for the return of the property,

the court found that West Covina was required to give

property owners notice of state procedures for the

return of property and also the information needed to

18 No. 08-1455

invoke those procedures, including the warrant number.

525 U.S. at 238-39. The court of appeals detailed the

information that should have been provided to the prop-

erty owner, including: the fact of and date of the search,

the agency conducting the search, the date of the war-

rant, the issuing judge, the court where that judge

served, persons to be contacted for further information,

the procedure for contesting the seizure or retention of

property taken, along with any information needed to

initiate that procedure, and notice that the owner must

file a written motion or request to the court stating why

the property should be returned. 525 U.S. at 239.

The Supreme Court rejected this expansive require-

ment. Perkins acknowledged receipt of a notice that his

property had been seized and an inventory of that prop-

erty. Unlike the plaintiffs here, Perkins raised no inde-

pendent challenge to the adequacy of state law remedies

for the return of his property. Rather, Perkins con-

tended that West Covina deprived him of due process

by failing to provide him notice of the available state

law remedies and the factual information needed to

invoke them. The Court held that “[w]hen the police

seize property for a criminal investigation, however, due

process does not require them to provide the owner

with notice of state-law remedies.” West Covina, 525 U.S.

at 240. The primary purpose of the notice required by

the Due Process Clause, the Court noted, is to ensure the

opportunity for a meaningful hearing. Therefore, due

process requires officers seizing property to “take rea-

sonable steps to give notice that the property has been

taken so the owner can pursue available remedies for

its return.” 525 U.S. at 240.

No. 08-1455 19

No similar rationale justifies requiring individualized

notice of state-law remedies which, like those at

issue here, are established by published, generally

available state statutes and case law. Once the prop-

erty owner is informed that his property has been

seized, he can turn to these public sources to learn

about the remedial procedures available to him. The

City need not take other steps to inform him of

his options.

525 U.S. at 241.

The Court found that its holding in Memphis Light, Gas &

Water Division v. Craft, 436 U.S. 1 (1978), was not to the

contrary. In Memphis Light, the Court held that when

a public utility wishes to terminate service for non-pay-

ment, the utility must provide the customer with an

opportunity to discuss any billing dispute with a

person who has authority to resolve the dispute before

terminating the service. 436 U.S. at 16-17. Because the

internal administrative procedures for resolving billing

disputes were not described in any publicly available

document, the Court also held that due process re-

quired the utility to inform the customer of the avail-

ability and general contours of those procedures. 436

U.S. at 13-15. In West Covina, the Court read Memphis

Light to require notice of the procedures for protecting

one’s property interest “when those procedures are

arcane and are not set forth in documents accessible to

the public.” West Covina, 525 U.S. at 242. Memphis Light

did not, however, support a general rule that notice of

remedies and procedures is required. When state law

20 No. 08-1455

remedies are established by published, generally available

state statutes and case law, no individualized notice

of those procedures is required. West Covina, 525 U.S.

at 241. The Appendix to the Opinion of the Court in

West Covina contains a list of federal and state laws gov-

erning the execution of search warrants and the return

of seized property. 525 U.S. at 244-45. Among the laws

listed is 725 ILCS 5/108-10, which is one of the stat-

utes listed in the Notice issued to both Nelson and

Gates when their property was seized. Section 108-10

addresses the return of property taken pursuant to a

warrant. Section 108-2, also listed on the inventory

receipt, relates to the custody and disposition of things

seized without a warrant, the situation in the instant

case. Unlike West Covina, the money seized from Gates

and Nelson was taken without a warrant during an

inventory search incident to arrest. As we note below,

the City relies on Section 108-1 for authority to search

for and seize at the time of arrest the proceeds of a crime,

articles used in the crime and similar items. We will

assume for the purposes of our discussion below that

West Covina is not distinguishable simply because the

money was seized without a warrant. We reserve that

decision for a case where it is presented and argued.

Under West Covina, the City was not obliged to give

Gates and Nelson individualized notice of any publicly

available state law remedies for the return of their prop-

erty, and thus had no obligation to direct the arrestees

to Section 108, if Section 108 is in fact an available rem-

edy. The City was obliged by statute to inform the

arrestees of the fact of the seizure and to provide an

No. 08-1455 21

inventory of the items seized. That they did. Although

West Covina controls as to the procedures set forth in

state statutes, it does not control as to the City’s addi-

tional difficult-to-access police department rules. In

addition to the Section 108 order, the City appears to

require additional documents not prescribed by any

state statute. Because the City’s additional procedures

and requirements are not readily accessible to the public,

Memphis Light rather than West Covina controls, and the

City must provide notice of the procedures.

In addition to obtaining a Section 108 order, the City

required arrestees to take steps in addition to or in lieu

of that state law remedy if they hoped to get their

money back. The City concedes it would not honor a

Section 108 order in the case of a narcotics arrest and

in certain non-narcotics cases, such as gambling and

prostitution, that might also involve forfeiture. Ac-

cording to the City, non-narcotics arrestees required the

inventory receipt, proper identification and either a

Form 54 or a Section 108 order in order to retrieve their

money. Narcotics arrestees were required to produce

the inventory receipt, proper identification, a Form 54 or

Section 108 order, and either a Pollard notice, an order

from an asset forfeiture court or a letter from the state’s

attorney’s office. Both plaintiffs were told they needed

the Form 54 and the desk officers did not mention

Section 108 when the plaintiffs tried to reclaim their

property. Although the state statutes make no mention

of “CPD-34.554,” the Form 54 as it is called in the

police department, the first line of the Notice states,

“Property Release Order (CPD-34.554) Required.” The

Form 54 is “[r]equired” according to the Notice, even

22 No. 08-1455

though in certain instances it simply would not be

signed by the arresting officer.8

The procedures the police department actually em-

ployed are not available in documents that are published

and generally available. The procedures described in

the plaintiffs’ testimony (which we are obliged to credit

at this stage of the proceedings) are revealed nowhere

except possibly in the Police Department’s General

Orders. The district court found that the General Orders

were published and generally available because they

are apparently accessible during monthly police board

meetings. Gates II, 507 F.Supp.2d at 916-17. General

Orders, which are written as guides for police officers,

are not “published and generally available” in the same

sense that publicly enacted laws are published and gen-

erally available. Rather, they are “arcane and are not set

forth in documents accessible to the public.” West Covina,

525 U.S. at 242. An arrestee would have to know that

the General Orders exist, know that they contain infor-

8

One of the Rule 30(b)(6) witnesses for the City pointed out that

there is a box to the left of the line requiring the Form 54.

That witness testified that the Form 54 is required only when

that box is checked. The photocopies of the Notice are faint

and the box is not visible on this court’s copies of the docu-

ment. Moreover, the Notice is arranged in such a way that a

person may not realize that the two paragraphs following

the Form 54 statement do not apply unless that box is checked.

Finally, the record is unclear regarding whether the box was

checked on either plaintiff’s inventory form, but both plain-

tiffs were told that Form 54 releases were required to re-

trieve their money.

No. 08-1455 23

mation regarding the recovery of money seized during

arrest, know where and when to find them, and then

be able to discern from documents intended to guide

police officers what they as arrestees should do to

recover their money.9 This is clearly distinguishable from

the published, generally available statutes, and thus

West Covina does not control the outcome. Because the

procedures were arcane and not generally available,

under Memphis Light, the City was thus obliged to tell

arrestees how to get their money back.

The Notice given to arrestees with the inventory

receipt does not adequately inform arrestees of the pro-

9

Although it is not part of the record, we found a recent

newspaper article regarding the General Orders enlightening.

Apparently, the General Orders are due for a major overhaul

meant to reduce the volume, remove obsolete rules and add

clarity. See “First Time in 40 Years: Cops’ Rule Book Gets a

Makeover: ‘It’s a mess.’ 16-inch stack to be thinned down.”

http://www.suntimes.com/news/metro/2100601,CST-NWS-cop

rules14.article (last visited September 22, 2010). “It’s a mess,” is

a quote from the Department’s director of police research and

development division. A sergeant who uses the General

Orders every day stated, “You read these general orders and

your eyes start bleeding. They’re so boring.” A police and

civilian team aims to reduce the size of the 16-inch stack of

orders by two-thirds, according to the article. The banality of

the General Orders and the ennui they induce in readers

are not at issue here, of course. The problem with using the

General Orders as notice of the procedures for reclaiming

seized funds is that they are not generally available to the

public in the same sense as published statutes. They are more

like the arcane rules referenced in Memphis Light.

24 No. 08-1455

cedures to retrieve their money and thus does not

comport with due process. After our review of the

record, the City’s procedures for arrestees to reclaim

their cash remain unclear. When the plaintiffs followed

the directive to return to the police station for forms

and instructions to reclaim their property, they were

told they needed the Form 54 but the desk officers

did not mention Section 108 orders, orders from asset

forfeiture courts or letters from the state’s attorney’s

office. The City’s Notice did not inform arrestees of the

internal police department procedures which appear to

have actually governed the procedure for the return

of property seized during an arrest. Nothing on the

Notice informed non-narcotics arrestees that they

would require the inventory receipt, proper identification

and either a Form 54 or a Section 108 order. Nothing on

the Notice informs narcotics arrestees that they will

require the inventory receipt, proper identification, a

Form 54 or Section 108 order, and either a Pollard

notice, an order from an asset forfeiture court or a letter

from the state’s attorney’s office.

Nothing on the Notice tells arrestees that if the “hold

for investigation and/or evidence” box is checked, the

subsequent instructions to return to the police station

with the inventory form will be inefficacious, at least

until the criminal case has concluded and the time for

forfeiture has expired. Under those circumstances, fol-

lowing the instructions on the receipt by seeking the

signature of an arresting officer on a Form 54 Property

Release Order is a futile pursuit because the property

will not be available for immediate release. The Notice

No. 08-1455 25

also indicates that “official notification” that the property

is available for release will be forthcoming even though

the City never issues such a notice, even in cases where

it determines that the property is not subject to forfeiture

and is not necessary for investigation or evidentiary

purposes. Although the City was not obliged to inform

arrestees about publicly published state law remedies,

the City may not mislead arrestees about the necessary

procedures for the return of their money or lull them

into passively waiting for official notification. On this

record, it appears the City’s instructions were a model

of misdirection. Although published state statutes

qualify as being readily available to the public, documents

that are available at a monthly Police Board Meeting,

although technically available to the public in a limited

way, cannot satisfy due process notice requirements.

Summary judgment in favor of the City on the issue

of notice sufficient to satisfy due process was premature

given that the Notice provided misleading and incom-

plete information.

2.

For narcotics arrestees, there is an additional due

process notice issue. According to Nelson, the Pollard

notice is mailed to the address listed on the inventory

receipt. This address is provided by the arrestee at the

time of the arrest. Nelson challenges whether mailing

this notice to the address given on the inventory receipt

satisfies the requirements of due process. He contends

that a predictable percentage of arrestees will not be

26 No. 08-1455

able to make bail and will be in jail at the time the

Pollard notice is mailed to their last home address. The

City is well aware that some arrestees will not be found

at home because the City itself delivers the arrestees

to the jail. Nelson argues that, before sending the

Pollard notice, the City should take the additional step

of checking the website of the Sheriff’s Department to

determine if the arrestee is in jail, and if so, deliver the

Pollard notice to the arrestee in jail. Nelson also argues

that, if the City uses the address listed on the inventory

receipt in the first instance, the City is obliged to take

the additional step of checking the Sheriff’s website to

determine if the arrestee is at the jail and forward the

notice there if the first Pollard notice is returned to the

City as undelivered.

Due process requires, at a minimum, that “deprivation

of life, liberty or property by adjudication be preceded

by notice and opportunity for hearing appropriate to the

nature of the case.” Mullane v. Central Hanover Bank &

Trust Co., 339 U.S. 306, 313 (1950). That notice must be

“reasonably calculated, under all the circumstances, to

apprise interested parties of the pendency of the action

and afford them an opportunity to present their objec-

tions.” Mullane, 339 U.S. at 314. The question here is

whether notice initially sent to the home address

of arrestees, a number of whom predictably remain in

custody, is reasonably calculated to reach them. There is

a risk (which we cannot quantify on this record) that

incarcerated persons will never see notices that were

sent to their homes, in some cases because the notice

will be returned as undeliverable and in other cases

No. 08-1455 27

because other persons living in the home will not

forward the notice to an incarcerated arrestee. A related

question is whether mailings returned by the post office

require a check of the Sheriff’s website and a possible

second mailing under the Mullane standard. The plain-

tiffs point out that there is some agreement between

the parties on the basic principles at play. The plain-

tiffs agree that the notice need not actually reach its

intended target so long as it is reasonably calculated to

do so. Dusenbery v. United States, 534 U.S. 161 (2002)

(actual notice is not required so long as the chosen

method of giving notice is reasonably certain to inform

those affected); Ho v. Donovan, 569 F.3d 677, 680 (7th Cir.

2009) (same). The defendants agree that a notice may not

be sent to the arrestee’s home if the City affirmatively

knows the arrestee is in jail because such a mailing

is not reasonably calculated to reach the intended target.

Robinson v. Hanrahan, 409 U.S. 38, 39 (1972) (where the

State mails a vehicle forfeiture notice to the address

where the vehicle is registered even though the State

knows the target of the mailing was not at that address

and also knows he will not be able to get to that address

because he is confined in jail, that notice was not rea-

sonably calculated to apprise the vehicle owner of the

pendency of the forfeiture proceedings). Nelson notes

that, in narcotics cases where criminal proceedings

have been initiated against the arrestee whose property

has been seized, the City is aware of a significant possi-

bility that the arrestee is in state custody and will not be

at home to receive the Pollard notice. Nelson acknowl-

edges that not all arrestees are in jail at the time the

28 No. 08-1455

Pollard notice is mailed, and thus concedes that the

City cannot know the arrestee’s whereabouts without

inquiry, but contends the City can easily check the

Sheriff’s website to determine if the arrestee is incar-

cerated before sending the notice. At the very least,

Nelson asserts, the City should be required to check the

Sheriff’s website if the first attempted mailing is re-

turned as undelivered. If the arrestee is in jail, the City

should be required to mail the Pollard notice to the

jail, Nelson posits.

Mullane specifies that the means of delivery “employed

must be such as one desirous of actually informing the

absentee might reasonably adopt to accomplish it.” The

purpose of notice under the Due Process Clause is to

apprise interested parties of the pendency of an action

that might deprive them of their property and afford

them an opportunity to present their objections. The

purpose of the Pollard notice is to inform the owner

that forfeiture will not be sought and that the funds are

available to be returned to the owner. But if the owner

fails to reclaim property within a certain number of days

after receiving notice of its release, the inventory re-

ceipt Notice warns that the “property will be legally dis-

posed of according to the direction of law.” The Pollard

notice is not the only notice relating to property seizure

received by narcotics arrestees. Narcotics arrestees also

receive the inventory receipt, which contains its own

Notice regarding how to proceed when property has

been seized at the time of arrest. That Notice is handed

to the arrestee at the time of the arrest, but as we

noted above, that Notice is not adequate on this record

No. 08-1455 29

to apprise narcotics arrestees of the procedures neces-

sary to reclaim their money. Moreover, the Pollard notice

is more than just a notice; it is a document required to

retrieve the property that has been seized. The City

has conceded that it will not release the property in a

narcotics case unless the arrestee presents the Pollard

notice, an order from an asset forfeiture court or a letter

from the state’s attorney’s office. In a case where the

City decides not to seek forfeiture, there will be no

order from an asset forfeiture court and no letter from

the state’s attorney’s office settling the forfeiture. The

Pollard notice then becomes the most important vehicle,

if not the only vehicle, for the arrestee to reclaim

his money.

The record does not tell us the cost to the City of

checking the Sheriff’s website before mailing the

Pollard notice, or the cost of checking it only after a

notice has been returned as undelivered. It is the City’s

burden to demonstrate that the notice provided is ade-

quate for the purposes of due process. Whiting v. United

States, 231 F.3d 70, 77 (1st Cir. 2000) (the government

must show, if the issue is contested, that the notice

was mailed to the prison in which the claimant was in

fact being held). Generally, written notice mailed to the

claimant’s residence satisfies due process even if the

notice is not actually received. Krecioch v. United States,

221 F.3d 976, 980 (7th Cir. 2000). At the same time, due

process is not satisfied if the notifying party knew or

had reason to know that notice would be ineffective.

Garcia v. Meza, 235 F.3d 287, 290 (7th Cir. 2000); Krecioch,

221 F.3d at 980. Given that the City knows that some

30 No. 08-1455

arrestees will be in jail when the Pollard notice is mailed,

we are reluctant to find as a matter of law that

notice mailed to the home of the arrestee satisfies the

Mullane standard, especially in cases where the notice

is returned as undelivered. At that point, the City’s

general knowledge that some arrestees will be in jail

becomes more specific: this arrestee is quite possibly in

jail. 10 Kreicioch, 221 F.3d at 980-81 (the government

violates due process when it purposely mails notice

of forfeiture to the claimant’s residence knowing that

the claimant is incarcerated or in federal custody). “A rea-

sonable person presented with a letter that has been

returned to sender will ordinarily attempt to resend it

if it is practicable to do so.” Small v. United States, 136

F.3d 1334, 1337 (D.C. Cir. 1998). A person “desirous

of actually informing” the arrestee would likely take

that second step and check the Sheriff’s website. Small,

136 F.3d at 1337 (when the government knows, or can

easily ascertain, where a person may be found, it must

direct its notice there, and not to some other address

where the designee formerly resided). Although the

City complains that the Sheriff’s website contains a dis-

10

There are a number of reasons, of course, that a notice

might be returned as undeliverable. The arrestee may have

moved, or may have given a false address in the first place.

The question here is whether the notice is reasonably cal-

culated to reach the target. When the sender of the notice

has itself delivered the intended recipient to jail, jail is cer-

tainly one of the likeliest places to find that target if mail sent

to the home address is returned by the post office.

No. 08-1455 31

claimer regarding the accuracy of the data on the

site, the use of that site to locate the arrestee would

likely satisfy the City’s duty to reasonably attempt

delivery given the City’s awareness that some per-

centage of arrestees will not be home to receive the

notices but will be in custody. As even the plaintiffs

concede, actual notice is not necessary if the City takes

steps that are “reasonably calculated” to provide the

notice. On this record, we cannot say that mailing only

to the address given at the time of arrest is adequate

for due process purposes when the City has available

a seemingly low-cost option for locating arrestees

likely to be in jail. See Krecioch, 221 F.3d at 980 (when a

claimant is incarcerated or in government custody, the

ease of learning the claimant’s location makes it in

most cases unreasonable for the forfeiting agency to

fail to ascertain the location of one it knows to be in

government custody). “Of course, if sending the letter

again would require an ‘impracticable and extended

search’ for its addressee, Mullane, 339 U.S. at 317, 70

S.Ct. at 659, then a reasonable person would not try again,

and due process does not require another attempt.”

Small, 136 F. 3d at 1337. See also Lobzun, 422 F.3d at 507

(although there is no per se rule imposing an affirmative

duty on the government to seek out claimants in each

case where the initial notice is returned undelivered, the

court must decide on a case-specific basis whether the

Mullane standard is met, considering all of the circum-

stances of each case to determine whether the

notice provided is reasonably calculated to apprise the

claimant of pending proceedings). Our court has de-

32 No. 08-1455

clined to adopt a per se rule that examines notice only

at the time it was sent and ignores subsequent events.

Garcia, 235 F.3d at 291. At the same time,

we also decline to impose an affirmative duty upon

the government to seek out claimants in each case

where its initial notice is returned undelivered or

to require actual notice in every case. Instead, we

believe the correct approach is a fact-specific analysis

under the due process standard set forth by the Su-

preme Court in Mullane, which requires us to

consider all the circumstances of each case to deter-

mine whether the notice provided is reasonably

calculated to apprise the claimant of the impending

proceeding.

Garcia, 235 F.3d at 291. The plaintiffs claim that forty

percent of Pollard notices mailed are returned to the

police department undelivered. The City does not wish

to bear the expense of the additional search of the

Sheriff’s website and a possible second mailing because

the amounts at issue are so small. But the City expects

claimants to repeatedly return to the police station for

instructions and for the elusive hunt for the arresting

officer’s signature on the Form 54, in order to reclaim

those same small amounts. And the Pollard letter is not

simply notice but also the means by which arrestees

may reclaim their money. The predictable result is that

millions of dollars remain unclaimed in the City’s coffers

each year. We cannot conclude on this record that

arrestees are willingly abandoning millions of dollars;

it is just as likely that they do not claim their money

No. 08-1455 33

because they do not know how or because they have not

received a Pollard notice or because the City has made

the process obtuse and unreasonably difficult. It is more

likely that arrestees do not know how to retrieve their

money because the City’s notice is misleading and, in a

certain class of cases, is not reasonably calculated to

reach its target. The district court was premature in

holding that the inventory receipt Notice was adequate,

and in finding that no more than the initial Pollard

mailing to the address listed on the inventory receipt

was required for narcotics arrestees. The court should

also have considered the City’s knowledge that a pre-

dictable number of arrestees would not be home, and

should have weighed the practicability of checking the

Sheriff’s website and making a second mailing.

B.

Before we proceed to the merits of the inadequate

procedures issue, we must address the City’s contention

that the plaintiffs waived any claim that they were

entitled to prompt post-deprivation hearings by not

raising this issue in the district court. The plaintiffs

made clear several times in the district court that their

due process claim encompassed both a lack of notice

about the procedures for the return of their property

and the inadequacy of the procedures themselves. In

part, the plaintiffs argued that the City failed to estab-

lish its right to continue to detain their property through

a post-deprivation hearing and yet also would not

34 No. 08-1455

return their property. See, e.g., R. 17, at 2 (“Fourth, Defen-

dants violate the Fourth Amendment by seizing and

detaining property without securing a post-seizure

finding of probable cause to detain it.”); Id. at 6 (“[I]t

is important to note the dual aspects of Plaintiffs’ proce-

dural due process claim. The first . . . is a constitutionally

defective notice. The second aspect of the procedural

due process claim relates to Defendants’ failure to offer

a constitutionally permissible administrative remedy.”);

R. 317-1, at 10-11 (noting the dual aspects of the due

process claim, and also noting that the “City neverthe-

less retains the inventoried cash, fails to send notice

the property is available for pick up, and never seeks

judicial approval of its continued detention of the prop-

erty.”). We understand the plaintiffs’ argument to be

that they were entitled to the immediate return of their

money at the conclusion of the criminal cases against

them and after the time for forfeiture had passed be-

cause the City failed to establish any right to continue

holding the money. The City failed to establish a right

to detain the money in part because there was no

prompt post-deprivation hearing. The plaintiffs have not

sought a prompt post-deprivation hearing as a remedy

but rather argued that they were entitled to get their

money back in the absence of any such hearing. The

City does not seem to deny that it had no claim on the

plaintiffs’ property after the conclusion of the criminal

cases and after the time for seeking forfeiture expired,

and in fact contends that it never “seized” the plaintiffs’

property at all but merely “recovered” it, a contention

that is consistent with the plaintiffs’ claim. The plain-

No. 08-1455 35

tiffs’ argument regarding a prompt post-deprivation

hearing, although not always clearly expressed, is simply

part of their larger argument that the procedures for

the return of their money were inadequate, an issue

which they clearly preserved. We will therefore proceed

to the merits of the issue.

We have already concluded that notice of the proce-

dures for reclaiming seized money may be inadequate

and that the district court was premature in granting

judgment in favor of the City on that point. We now

consider whether the process itself was adequate to

satisfy the Constitution. The record is replete with

factual disputes about what the City requires of arrestees

seeking return of their money and whether the City’s

stated procedures and remedies are actually available

to arrestees. Gates and Nelson contend that the City’s

procedure was illusory and that the signed Form 54

was essentially unobtainable. They complain that the

City has improperly inverted the burden of proof in

requiring arrestees to obtain orders proving their entitle-

ment to their money. If the City wishes to retain the

money following the conclusion of criminal proceedings,

Gates and Nelson contend, then the City must seek

judicial authorization allowing the City to do so. The

City cites Sections 108-2, 108-10 and 108-11 as providing

an available state statutory process and argues that the

burden on arrestees of requesting a criminal court order

releasing inventoried property is de minimis. The City

also cites Section 108-1 as authority for seizing the

money in the first place.

36 No. 08-1455

Section 108-1 provides in relevant part:

Search without warrant. (1) When a lawful arrest is

effected a peace officer may reasonably search the

person arrested and the area within such person’s

immediate presence for the purpose of:

(a) Protecting the officer from attack; or

(b) Preventing the person from escaping; or

(c) Discovering the fruits of the crime; or

(d) Discovering any instruments, articles, or things

which may have been used in the commission of,

or which may constitute evidence of, an offense.

725 ILCS 5/108-1. The City argues that Section 108-1 allows

officers to search arrestees for fruits of the crime, or items

that constitute evidence of the crime or items that were

used in committing the crime. Releasing such property

before the State has decided whether to use it as evi-

dence or the criminal court has released it would contra-

vene these purposes, the City argues. To ensure that

property is not released prematurely, the City reasons

that it may require arrestees to present either a court

order or a Form 54 executed by the arresting officer. The

plaintiffs, however, are not seeking return of their funds

during the pendency of criminal proceedings. The class

consists of arrestees whose criminal cases have con-

cluded and for whom the time for forfeiture has ex-

pired. But the relevance of Section 108-1 as a source

of authority for holding the property is questionable

once the criminal cases are concluded. At that point, the

City is essentially arguing that it was entitled to shift to

No. 08-1455 37

the arrestee the administrative burden of keeping track

of whether the money was still needed in a prosecution.

Recall that Section 108-2 provides what is to be done

when property is seized without a warrant. In that in-

stance:

An inventory of all instruments, articles or things

seized on a search without warrant shall be given to

the person arrested and a copy thereof delivered to

the judge before whom the person arrested is taken,

and thereafter, such instruments, articles or things

shall be handled and disposed of in accordance

with Sections 108-11 and 108-12 of this Code. If the

person arrested is released without a charge being preferred

against him all instruments, articles or things seized, other

than contraband, shall be returned to him upon release.

725 ILCS 5/108-2 (emphasis added). Section 108-10 pro-

vides the procedure when property is taken pursuant to

a warrant:

A return of all instruments, articles or things seized

shall be made without unnecessary delay before the

judge issuing the warrant or before any judge named

in the warrant or before any court of competent juris-

diction. An inventory of any instruments, articles or

things seized shall be filed with the return and

signed under oath by the officer or person executing

the warrant. The judge shall upon request deliver

a copy of the inventory to the person from whom or

from whose premises the instruments, articles or

things were taken and to the applicant for the warrant.

38 No. 08-1455

725 ILCS 5/108-10. In each instance here, the money was

seized without a warrant and so Section 108-2 applies.

Section 108-2, in turn, directs the court to Section 108-11

and 108-12. Section 108-12 addresses the disposal of

obscene material and is not relevant here. Section 108-11

provides:

The court before which the instruments, articles or

things are returned shall enter an order providing

for their custody pending further proceedings.

725 ILCS 5/108-11.

The City envisions that the court will enter an order

in each case involving a seizure of property. The plain-

tiffs do not dispute that a court could, in theory, enter

such an order. But they contend that the statute

does not require a court to do so, that courts generally

are reluctant to take that step, and that in any case, the

City does not accept such an order as sufficient to

secure the release of funds. If money seized is potentially

subject to forfeiture, as it may be in narcotics cases or

certain other cases,1 1 the City admits it will not release

the money even if the arrestee presents a court order

issued under Section 108 (if an arrestee manages to

procure such an order, which Gates and Nelson claim

is difficult to impossible). In that instance, the City addi-

tionally requires an order from an asset forfeiture court

or a Pollard release letter from the Asset Forfeiture Unit

11

The City claims to seek forfeiture in certain cases in-

volving prostitution and gambling in addition to certain nar-

cotics cases.

No. 08-1455 39

or a letter from the state’s attorney’s office indicating

any forfeiture has been settled even when the time

for applying for forfeiture has passed and even when

the City has decided as a matter of policy not to seek

forfeiture in cases involving small amounts of money.

As we noted, the plaintiffs have also testified that the

City also requires a signed Form 54 in possible asset

forfeiture cases as well as in all other cases, a require-

ment stated on the face of the Notice.

Gates and Nelson contend that criminal court judges

routinely refuse to enter Section 108 orders and that

the provision is therefore not an available remedy. The

arguments of both the plaintiffs and the City on this

issue are moving targets, but we see a number of poten-

tial problems with the City’s argument regarding Sec-

tion 108. Although Section 108 might provide a means

for arrestees to reclaim money that the City has held

past the point of any legitimate right to retain it, the

plaintiffs’ real complaint is that the City has a policy

of routinely putting arrestees to the burden of that

remedy in the first place. The plaintiffs’ first point of

contention with the City’s policy is that it requires

arrestees to provide anything other than the inventory

receipt and proper identification to collect their money

at the conclusion of their criminal cases. Once the time

for forfeiture has passed and it is clear the City has no

entitlement to the money, the plaintiffs maintain that

there is no constitutionally permissible reason to require

arrestees to procure a court order to reclaim what is

rightfully theirs. The City nonetheless insists upon the

Section 108 order because it wishes to verify that the

40 No. 08-1455

criminal case is indeed over, that the money is no

longer needed as evidence, and that forfeiture is no

longer an issue. In requiring the order, Gates and Nelson

contend, the City shifts to arrestees the administrative

burden of proving entitlement to their money and retains

the money past any legitimate time frame as a matter

of official policy.

The question with respect to Section 108 is whether

the City or the arrestee should be held to the burden of

seeking a Section 108 order. In cases where the money

is legitimately needed as evidence or might be subject

to forfeiture, the City or the prosecutor can ask the court

to enter a Section 108 order “providing for [its] custody

pending further proceedings.” 725 ILCS 5/108-11. In

cases where the criminal case has concluded and the

time for forfeiture has expired, an arrestee may ask the

court to release the funds. The plaintiffs contend they

should not be put to this task and the City contends it

is a de minimis burden. The plaintiffs also presented

evidence that criminal courts are reluctant to issue

Section 108 orders unless the arrestee can demonstrate

that forfeiture will not be sought, placing arrestees in a

classic Catch-22 because the alleged purpose of re-

quiring the Section 108 order is to demonstrate to the

City that forfeiture is no longer an issue.

In arguing that the City’s procedures requiring a

Section 108 order or a Form 54 do not comport with due

process, the plaintiffs cite to a line of cases from the

Second Circuit involving the procedures for arrestees

to recover their property in the City of New York. See

No. 08-1455 41

McClendon v. Rosetti, 460 F.2d 111 (2d Cir. 1972); Butler

v. Castro, 896 F.2d 698 (2d Cir. 1990); Alexandre v. Cortes,

140 F.3d 406 (2d Cir. 1998). The plaintiffs in McClendon,

like the plaintiffs here, had been arrested and had

property taken from them at the time of their arrests.

Pursuant to a municipal ordinance, that property was

delivered to the Police Property Clerk of New York

(“Property Clerk”) by the arresting officers or by the

Department of Corrections. In each person’s case, crim-

inal proceedings had been terminated either by dismissal

or conviction of a crime unrelated to the property.

The District Attorney had in each instance supplied a

release certifying that the property was no longer

needed as evidence in any case and that the District

Attorney had no objection to its release. Each plaintiff

made a timely demand for the return of his or her

property and each was told that they must file a civil

suit. The parties agreed that the part of the ordinance

giving a judge the authority to direct the return of the

property was not a meaningful remedy because almost

no criminal court judge would order such a return. The

court held that, beyond certain deficiencies of notice,

the ordinance is fatally deficient in other terms of

due process. The burden of proof in any civil action

is expressly put upon the claimant “from whose pos-

session such property or money was taken or

obtained, or any other claimant” to “establish that

he has a lawful title or property right in such

property or money and lawfully obtained possession

thereof and that such property or money was held

and used in a lawful manner.” New York, N.Y. Admin-

42 No. 08-1455

istrative Code § 435-4.0(f) (Supp.1971). As the section

has been construed by the New York courts, the

burden exists even if there is insufficient evidence

for an indictment. It exists even after acquittal or

dismissal. It seems plain enough that absent evi-

dence of unlawful conduct, criminal sanctions may

not be imposed nor property forfeited even though

in the case of property forfeiture the burden of proof

on the government seeking it is only by a preponder-

ance of the evidence.

McClendon, 460 F.2d at 115 (internal citations omitted).

The city thus treated the arrestee as if his property

was contraband or was presumptively subject to for-

feiture. The court noted the defendant’s concession that,

as a matter of practice, when a registered owner of a car

seized in connection with an arrest filled out a form

provided by the Property Clerk, showed proof of owner-

ship and lawful possession, and the District Attorney

had released the car as evidence, “the Property Clerk will

frequently return the automobile if he is satisfied that

the claimant had no knowledge it was used as a means of

or in furtherance of crime.” McClendon, 460 F.2d at 115-16

(emphasis in original). The court characterized this

regular practice as displaying a “substantial degree of

governmental arbitrariness” that “suggests per se a lack

of due process.” 460 F.2d at 115. The court therefore

held the municipal code “unconstitutional as applied to

persons from whose possession money or property,

other than contraband, has been taken or obtained,

though such money or property was not related to any

criminal proceeding, or, if it was so related, such crim-

No. 08-1455 43

inal proceedings had been terminated, or if the money

or property had been needed as evidence in a criminal

proceeding, it was no longer needed for that purpose,

as violative of the due process clauses of the fifth and

fourteenth amendments.” 460 F.3d at 116.

The case was remanded to the district court, which in

turn issued a remedial order specifying a procedure

for release of property taken at arrest. Among other

things, the district court required the City of New York

to provide each person from whom property was

taken at arrest a voucher which contained instructions

(printed on the back of the voucher) on how to reclaim

his or her property. According to the court’s order, the

arrestee could reclaim property taken at the time of

arrest by presenting the voucher, proper identification,

and a district attorney’s release stating that the prop-

erty was not needed as evidence, to the Property Clerk.

Upon demand, the Property Clerk was then obliged to

release the money or institute forfeiture or other judicial

proceedings if it intended to keep the property further.

See Butler, 896 F.2d at 701-02 (explaining the procedure

set forth by the district court after remand in McClendon).

The City of New York, however, failed to update its

municipal code to reflect the court-ordered procedures

but instead left in place the procedures which had

been stricken down in McClendon. The plaintiff in Butler

claimed not to have received the voucher containing

the instructions for reclaiming his property. Because the

City of New York had not yet modified the municipal

code to reflect the McClendon procedures, and because

the police department did not give Butler a voucher

44 No. 08-1455

informing him of the prevailing procedures, the court

found that Butler could maintain a due process claim

based on lack of notice of the procedures to reclaim

his property. 896 F.2d at 703-04.

In Alexandre, the third case in the series, the plaintiff

was arrested, charged with murder and convicted. At the

time of his arrest, police officers seized the car he was

driving and jewelry in his possession. None of the

property taken was related to the crime. Alexandre, 140

F.3d at 407. The police ultimately returned the car to the

title holder to whom Alexandre owed some remaining

payments. The jewelry was misplaced, lost or stolen.

Alexandre raised two arguments. First, because the loss

of his property resulted from established City proce-

dures and not from a random and unauthorized act, the

existence of post-deprivation remedies under state law

did not foreclose a due process claim. Second, he con-

tended that, even if established City procedures allowed

claimants to recover property in a way that satisfied

due process, the description of those procedures in the

newly updated municipal code was misleading and

did not provide constitutionally adequate notice. 140

F.3d at 409. In expounding on McClendon, the Alexandre

court explained that the earlier municipal code was

unconstitutional in two respects. First, prisoners whose

property was being held by the Property Clerk did not

receive meaningful notice of the procedures for re-

covering it. And second, the municipal code “improperly

placed the burden of proof on the prisoner to ‘establish

that he ha[d] a lawful title or property right in such

property or money and lawfully obtained possession

No. 08-1455 45

thereof and that such property or money was held and

used in a lawful manner.’ ” Alexandre, 140 F.3d at 409

(quoting the now-obsolete New York municipal code).

“This arrangement impermissibly permitted the imposi-

tion of criminal sanctions in the absence of unlawful

conduct.” 140 F.3d at 409 (citing McClendon, 460 F.2d

at 114-16).

Analyzing Alexandre’s due process claims, the court

considered the defendant’s claim that there could be

no due process claim for the release of the car to the title

holder because post-deprivation remedies available

under state law were adequate to compensate Alexandre

for any injury he suffered as a result of the release of

the car to the vendor that held title pending final pay-

ment. Citing the Supreme Court’s reasoning in Parratt

v. Taylor, 451 U.S. 527 (1981), overruled in part on other

grounds, Daniels v. Williams, 474 U.S. 327 (1986), and

Hudson v. Palmer, 468 U.S. 517 (1984), the court noted that

pre-deprivation procedures are impracticable in cases

of negligent and even intentional deprivations of prop-

erty when those deprivations occur through random

and unauthorized conduct of state employees; a state

cannot predict, after all, when that conduct will occur.

140 F.3d at 411. In those cases, adequate post-deprivation

remedies will suffice. But an adequate post-deprivation

remedy is a defense to a Section 1983 action only where

the deprivation is random and unauthorized. Alexandre,

140 F.3d at 411; Butler, 896 F.2d at 700. “By contrast,

‘the existence of independent state relief does not defeat

a Section 1983 claim where the deprivation complained

of results from the operation of established state proce-

46 No. 08-1455

dures.’ ” Butler, 896 F.2d at 700. Because the release of

Alexandre’s car to the vendor holding the title was

effected in accordance with the City’s established proce-

dures, the court held that the Section 1983 action was not

barred by Parratt and Hudson. According to the court,

the system established by the City allowed the Property

Clerk to release a vehicle without notifying the arrestee

who held the voucher for it, and created no procedure

for an arrestee to challenge the City’s action of handing

the vehicle over to the titleholder. Such a system did not

comport with due process. Alexandre, 140 F.3d at 413.

As for the jewelry, the court first noted that twenty-six

years had passed since McClendon had been decided

and the City of New York had still failed to amend its

municipal code to eliminate the unconstitutional provi-

sions struck down in McClendon. Unlike Butler, though,

Alexandre received a property voucher for his jewelry.

Copies of the voucher in the record, however, showed

only the front of the voucher and it was therefore

unclear whether Alexandre had been provided with the

instructions for reclaiming property that normally ap-

peared on the back of the voucher. The City had

amended the municipal code to include at least part of the

court-ordered procedures for the release of property

taken at arrest. The court remanded the claim relating

to the jewelry so that the trial court could consider in

the first instance whether the amended municipal code

provided adequate notice of the procedures and whether

the procedures themselves, as set forth in the amended

code, were adequate to satisfy the requirements of the

due process clause. Alexandre, 140 F.3d at 414.

No. 08-1455 47

The Second Circuit cases help clarify an issue lurking

in this case: the difference between regular procedures

for the return of property and remedies to pursue if

property is not returned according to those regular pro-

cedures. The parties argue over whether Section 108 is a

“remedy” available to arrestees seeking return of their

property. Arrestees should require a post-deprivation

“remedy,” however, only when random and unauthorized

conduct by City officials results in a deprivation of

their property. The appropriate question in the first

instance is whether the City, having taken the property

of arrestees without a warrant and having retained it

until the conclusion of criminal proceedings, has a proce-

dure for the return of that property that comports with

due process. If the City is saying that Section 108 pro-

vides the procedure, and the City reads Section 108 to

require the arrestees to seek a court order releasing their

property (an order the City admittedly will not honor

in certain cases), then those procedures may not com-

port with due process. As in McClendon, that procedure

improperly places on the arrestee the burden of proof to

establish that he had a lawful right to the property.

McClendon characterized such a burden as imposing a

criminal sanction in the absence of criminal conduct.

Even if arrestees could legitimately be required to

seek Section 108 orders as a matter of official policy, the

City does not follow the letter of Section 108. Recall

that the charges against Nelson were dropped. Under

Section 108, “[i]f the person arrested is released without a

charge being preferred against him all instruments,

articles or things seized, other than contraband, shall be

48 No. 08-1455

returned to him upon release.” The legal meaning of

“preferred” is of course different from the colloquial

use of the term. To prefer charges means “to bring be-

fore; to prosecute; to proceed with.” Black’s Law Dictio-

nary, Sixth Edition (1990). Under Section 108, when the

charges against Nelson were dismissed, his property

(excluding any contraband) should have been returned

to him without further ado. Section 108-2 does not con-

template a court issuing an order to effectuate the return

of property under these circumstances; it simply states

the property “shall be returned.” Nor does Section 108-2

or Section 108-11 specify that an arrestee is obliged to

seek a court order to retrieve property taken at the time

of arrest. Section 108-11 provides only that “[t]he court

before which the instruments, articles or things are re-

turned shall enter an order providing for their custody

pending further proceedings,” not that the arrestee

must demonstrate an entitlement to such an order or

even that he must ask the court to enter such an order.

Unless and until the City seeks an order allowing it to

continue to hold an arrestee’s money following the con-

clusion of criminal proceedings, or until a court sua sponte

enters such an order, it would seem that an arrestee

is entitled to his money at the conclusion of the criminal

case and after the time for forfeiture has expired.1 2

12

In their complaints, both Nelson and Gates take issue with

the City’s failure promptly to return their property at the

conclusion of the criminal proceedings. In the class action

count of the complaint, the plaintiffs cite as a common ques-

(continued...)

No. 08-1455 49

Moreover, the City did not confine itself to Section 108,

instead telling arrestees that they needed a signed

Form 54 in addition to other documents in order to

retrieve their money. Both Gates and Nelson were told

they needed a signed Form 54 when they attempted to

reclaim their property. Indeed, the Notice begins with

the words “Property Release Order CPD-34.554 Re-

quired.” The plaintiffs were not told they could present

a Section 108 order or an order from an asset forfeiture

court in the alternative. Nor was Nelson told that his

Pollard notice (the one he never received) would have

been sufficient to reclaim his money. Whether arresting

officers are ever available to sign or willing to sign a

Form 54 is a matter of some dispute, as is the question

of whether the City requires the Form 54 in narcotics

cases. The plaintiffs each tried multiple times without

success to obtain the Form 54. There is evidence in the

record that officers routinely check the “hold for evi-

dence or investigation” box on the inventory receipt, an

action which triggers the need for the Form 54, and

12

(...continued)

tion of law and fact whether the defendants “are required to

provide the Plaintiff with a prompt forfeiture hearing or

must release the money to the property owner immediately

following the final disposition of the criminal charges.” R. 192,

at 9. And of course, the class is defined to include only persons

against whom criminal charges have been resolved in the

trial court. We therefore need not decide whether Gates or

Nelson or any class members have any right to retrieve their

money before criminal proceedings are concluded.

50 No. 08-1455

also evidence that some officers (including the officers

who arrested Gates) do not know what a “CPD-34.554”

is or where these forms are kept. As a routine matter,

then, it appears that arrestees are required to seek a

Form 54 when arresting officers are unable or unwilling

to execute them. As with the Section 108 orders, the

arrestees were required to procure a Form 54 even at

the conclusion of the criminal cases against them, at a

time when the City had no further legitimate claim to

the funds. As in the Second Circuit cases, requiring

arrestees to obtain a signature from a police officer

who may grant or deny it arbitrarily, does not comport

with due process. In light of these conflicts in the evi-

dence and deficiencies in the City’s legal justifications

for shifting the burden to arrestees to demonstrate en-

titlement to their money at the conclusion of their crim-

inal cases, the district court erred in entering judgment

in favor of the City.

A significant amount of money goes unclaimed each

year. The amount of money and the number of arrestees

who are unable to reclaim their money, construed in a

light most favorable to the plaintiffs, are both indica-

tions that the City’s policy (whatever the fact-finder

determines it to be) makes it difficult or impossible for

arrestees to reclaim their money even when their

criminal cases are concluded. There are a number of

open fact questions that would aid the decision of this

case. As we asked the City at oral argument, how many

arrestees each year “donate” their money to the City

and how many reclaim it? What exactly is required of

arrestees in order to reclaim their money? If a Section 108

No. 08-1455 51

order is required, is it actually available to arrestees, and

is it truly a de minimis matter to obtain such an order?

How many arrestees have their money taken by an

officer who checks the “hold for evidence or investiga-

tion” box? How many get it back? How many do not?

How many Form 54s do Chicago police officers sign

each year? How many Section 108 orders are entered,

and how many are denied? Given the impressive

amount of money that goes unclaimed each year by a

class of persons who in all likelihood want it back, has

the City created a policy that places an impermissible

and daunting burden on arrestees to establish an en-

titlement to money that the City has no right to retain?

Summary judgment on the due process claims was

entered in error and we vacate the judgment for pro-

ceedings consistent with this opinion.

C.

Having vacated the judgment related to the due

process claims, we turn to the state law restitution

claims. On appeal, the plaintiffs complain that the

district court erred in dismissing the restitution claims

as moot. The restitution claims, which the plaintiffs

added in the Fifth Amended Complaint, were brought

under theories of unjust enrichment, constructive trust,

declaratory judgment and breach of fiduciary duty. Each

sought the return of the seized money and nothing

more. The City, of course, had tendered the full amount

of each plaintiff’s claim immediately after the first com-

plaint was filed, long before the plaintiffs filed claims

52 No. 08-1455

for restitution and long before they sought certification

of a restitution class. Counsel for the plaintiffs returned

the City’s checks and rejected the tender.

Whether a case is moot is a question of law that we

review de novo. Olson v. Brown, 594 F.3d 577, 580 (7th

Cir. 2010), cert. denied, 2010 WL 1700880 (June 21, 2010). A

case is moot “when the issues presented are no longer

‘live’ or the parties lack a legally cognizable interest in

the outcome.” United States Parole Commission v. Geraghty,

445 U.S. 388, 396 (1980) (quoting Powell v. McCormack,

395 U.S. 486, 496 (1969)). A tender is sufficient when

it makes the plaintiff whole. Gates I, 430 F.3d at 431. In

this case, the City tendered the full amounts the plain-

tiffs requested in the restitution counts long before

the plaintiffs even added these claims to their com-

plaints. That tender ended any dispute over restitution,

and the plaintiffs cannot revive it by simply refusing

the tender. Holstein v. City of Chicago, 29 F.3d 1145, 1147

(7th Cir. 1994). That plaintiffs sought to certify a restitu-

tion class does not change this result because they did not

add the claims or move to certify the class until after

their personal stake in the action had evaporated.

Holstein, 29 F.3d at 1147. The facts do not lend them-

selves to any exception to the general rule, and the

district court therefore correctly dismissed the restitu-

tion claims as moot.

III.

In sum, we find that the district court erred in

granting summary judgment in favor of the City on the

No. 08-1455 53

plaintiffs’ due process claims. We therefore vacate the

judgment in part and remand for further proceedings

on the due process claims relating to notice and proce-

dures to reclaim seized funds. We agree, however, with

the district court’s assessment of the restitution claims,

which were properly dismissed as moot and we there-

fore affirm the judgment in part. Each party shall bear

its own costs on appeal.

A FFIRMED IN P ART,

V ACATED AND R EMANDED IN P ART.

9-27-10