Petition for Writ of Certiorari — Blake Conyers, et al., Petitioners v. City of Chicago, Illinois

No. _______

In the Supreme Court of the United States

_______________________________

BLAKE CONYERS AND KEVIN FLINT, PETITIONERS,

v.

CITY OF CHICAGO

_______________________________

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

_______________________________

PETITION FOR WRIT OF CERTIORARI

_______________________________

KENNETH N. FLAXMAN

Counsel of Record

JOEL A. FLAXMAN

200 S Michigan Avenue

Suite 201

Chicago, IL 60604

knf@kenlaw.com

(312) 427-3200

Attorneys for Petitioners

QUESTION PRESENTED

Persons who are arrested submit to an inventory

search of their personal property. This serves “to protect

an owner’s property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized

property, and to guard the police from danger.” Colorado

v. Bertine, 479 U.S. 367, 372 (1987).

Pursuant to an explicit policy, the City of Chicago will

sell or destroy all arrestee property that is not claimed

within 30 days of arrest, even for arrestees like petitioners who cannot reclaim their property because they have

remained in custody awaiting trial. Other municipalities

will store inventoried property until the criminal case is

resolved.

The Seventh Circuit described the City’s practice as a

“destroy-or-sell policy” and held that it does not violate

the Fourth or Fifth Amendments. The Court of Appeals

acknowledged a circuit split on whether the protections

of the Fourth Amendment apply to property after it has

been lawfully seized or whether the Fourth Amendment

applies only to the initial seizure. The question presented

is:

May a municipality, consistent with the Fourth and

Fifth Amendments and pursuant to an explicit policy,

destroy or sell property seized during the inventory

search of an arrestee because the arrestee remains in

custody awaiting trial for more than 30 days and is unable to retrieve the property?

(i)

PARTIES TO THE PROCEEDINGS

Petitioners are Blake Conyers and Kevin Flint, who,

along with Lamar Ewing, were the appellants below.

Respondent is the City of Chicago.

RELATED PROCEEDINGS

United States District Court (N.D. Ill.):

Conyers v. City of Chicago, No. 12-cv-6144

(March 24, 2015) (ruling on motion to dismiss)

Conyers v. City of Chicago, 162 F. Supp. 3d 737

(N.D. Ill. 2016) (granting motion to dismiss

Takings claim and denying motion to dismiss

Due Process claim)

Conyers v. City of Chicago, No. 12-cv-6144

(September 27, 2017) (granting plaintiffs’

motion for class certification)

Conyers v. City of Chicago, No. 12-cv-6144

(May 18, 2020) (granting summary judgment

to defendant)

United States Court of Appeals (7th Cir.):

Conyers v. City of Chicago, 10 F.4th 704

(7th Cir. 2021)

(ii)

TABLE OF CONTENTS

Page

Opinions Below ................................................................... 1

Jurisdiction ......................................................................... 1

Constitutional Provisions and Statute Involved ........... 2

Introduction ........................................................................ 3

Statement ............................................................................ 4

Reasons for Granting the Petition .................................. 9

I.

The circuits are divided on whether the

Fourth Amendment protects an

individual’s interest in personal property

that has been lawfully seized ........................... 10

A. The rule followed by the First, Second,

Sixth, and Seventh Circuits ...................... 11

B. The contrary rule followed by the

Fourth and Ninth Circuits ......................... 14

II.

C. The conflict is ripe for resolution .............. 16

Recent scholarship demonstrates that the

Fourth Amendment protects “effects” that

remain in the custody of the government

after a lawful seizure ......................................... 17

III.

The importance of resolving the conflict ...... 19

Conclusion ......................................................................... 20

Appendix A – Court of Appeals Opinion

(August 17, 2021) .................................. 1a

(iii)

Appendix B – District Court Order on summary

judgment (May 18, 2020) .................... 20a

Appendix C – District Court Order on class

certification (September 28, 2017)

................................................................ 47a

Appendix D – District Court Order on second

motion to dismiss (February 10,

2016) ...................................................... 67a

Appendix E – District Court Order on first

motion to dismiss (March 24,

2015) ...................................................... 85a

Appendix F – Court of Appeals order on denial

of rehearing (September 16, 2021) .. 103a

Appendix G – Municipal Code of the City of

Chicago, § 2-84-160 ........................... 104a

Appendix H – Municipal Code of the City of

Chicago, § 2-84-180 ........................... 106a

TABLE OF AUTHORITIES

Cases

Brewster v. Beck, 859 F.3d 1194

(9th Cir. 2017) ..................................................... 4, 15, 16

Colorado v. Bertine, 479 U.S. 367 (1987) .................. 9, 18

Denault v. Ahern, 857 F.3d 76

(1st Cir. 2017) ...................................................... 3, 12-13

Entick v. Carrington 19 How.St.Tr. 1029 .................... 18

(iv)

Fox v. Van Oosterum, 176 F.3d 342

(6th Cir. 1999) ............................................... 3, 10, 11, 12

Griffin v. Illinois, 351 U.S. 12 (1956) ............................ 19

Heffley v. State, 83 Nev. 100, 423 P.2d 666 (1967) ....... 18

Illinois v. Lafayette, 462 U.S. 640 (1983) ...................... 18

Jessop v. City of Fresno, 936 F.3d 937

(9th Cir. 2019) ............................................................... 16

Knick v. Township of Scott, 139 S. Ct. 2162 (2019) ....... 8

Lee v. City of Chicago, 330 F.3d 456

(7th Cir. 2003) ...................................... 6, 9, 11-12, 13, 15

Manuel v. Joliet, 137 S. Ct. 911 (2017) ................ 9, 13, 18

Moms, Inc. v. Willman, 109 F. App’x 629 (4th

Cir. 2004) ....................................................................... 14

Owen v. City of Independence, 445 U.S. 622 (1980) .... 16

Pearson v. Callahan, 555 U.S. 223 (2009) .............. 14, 16

People v. Ortiz, 147 Cal. App. 2d 248,

305 P.2d 145 (1956) ................................................ 10, 18

People v Robinson, 320 N.Y.S.2d 665, 36 A.D.2d

375 (1971) ...................................................................... 18

Presley v. City of Charlottesville, 464 F.3d 480

(4th Cir. 2006) ........................................................... 4, 14

Riley v. California, 573 U.S. 373 (2014) ................. 17, 19

Sandoval v. County of Sonoma, 912 F.3d 509

(9th Cir. 2018) .......................................................... 15-16

Saucier v. Katz, 533 U.S. 194 (2001) .............................. 14

(v)

Shaul v. Cherry Valley-Springfield Cent. Sch. Dist.,

363 F.3d 177 (2d Cir. 2004) ..................................... 3, 12

Springer v. Albin, 398 F. App’x 427

(10th Cir. 2010) ............................................................. 16

St. Clair v. State, 1 Md. App. 605,

232 A.2d 565 (1967) ...................................................... 18

State v. Peck, 194 Wash. 2d 148, 449 P.3d 235

(2019) ............................................................................. 18

State v. Phifer, 39 N.C. App. 278,

250 S.E.2d 309 (1979) ................................................... 18

State v. Wallen, 185 Neb. 44, 173 N.W.2d 372

(1970) ............................................................................. 18

Torres v. Madrid, 141 S.Ct. 989 (2021) ......................... 13

United States v. Jacobsen, 466 U.S. 109 (1984) ........... 15

United States v. Jones, 565 U.S. 400 (2012) ................. 17

Warden v. Hayden, 387 U.S. 294 (1967) ....................... 18

Wilkins v. May, 872 F.2d 190 (7th Cir. 1989) .............. 12

Williamson County. Reg’l Planning Comm’n

v. Hamilton Bank of Johnson City, 473 U.S.

172 (1985) ........................................................................ 7

Statutes and Constitutional Provisions

28 U.S.C. § 1254 .................................................................. 1

42 U.S.C. § 1983 .............................................................. 2, 3

Chicago Municipal Code § 2-84-160 ................................. 5

Chicago Municipal Code § 2-84-180 ................................. 6

(vi)

U.S. Const. Amend. IV ........................................... passim

U.S. Const. Amend. V ............................................. passim

U.S. Const. Amend. XIV .................................................. 2

Other Sources

2 W. Blackstone, Commentaries on the Laws

of England ..................................................................... 19

Maureen E. Brady, The Lost “Effects” of the Fourth

Amendment: Giving Personal Property Due

Protection, 125 YALE L.J. 946 (2016) .................... 4, 17

Laurent Sacharoff, The Fourth Amendment

Inventory as a Check on Digital Searches,

105 IOWA L. REV. 1643 (2020) ............................... 13-14

(vii)

In the Supreme Court of the United States

_______________________________

BLAKE CONYERS AND KEVIN FLINT, PETITIONERS,

v.

CITY OF CHICAGO

_______________________________

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

_______________________________

PETITION FOR WRIT OF CERTIORARI

_______________________________

Blake Conyers and Kevin Flint respectfully petition

for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Seventh Circuit

in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. 1a-19a) is reported at 10 F.4th 704. The opinions of the district court

are available at 2020 WL 2528534 (App. 20a-46a), 2017

WL 4310511 (App 47a-66a), 162 F. Supp. 3d 737 (App.

67a-84a), and 2015 WL 1396177. (App. 85a-103a.)

JURISDICTION

The judgment of the court of appeals was entered on

June 28, 2021. The court of appeals denied rehearing and

a suggestion for rehearing en banc on September 16,

2021. (App. 104a.) The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).

(1)

-2CONSTITUTIONAL PROVISIONS

AND STATUTE INVOLVED

The Fourth Amendment provides:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated and no

Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or

things to be seized.

The Fifth Amendment provides:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall

any person be subject for the same offence to be twice

put in jeopardy of life or limb; nor shall be compelled

in any criminal case to be a witness against himself,

nor be deprived of life, liberty, or property, without

due process of law; nor shall private property be taken

for public use, without just compensation.

42 U.S.C. § 1983 provides in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof

to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress …

Sections 2-48-160 and 2-48-180 of the Chicago Municipal

Code are reproduced in the appendix, infra, 104a-06a.

-3INTRODUCTION

The Chicago Police Department, like all police departments, removes and inventories the personal property of

arrestees.

Unlike other police departments, Chicago sells or destroys inventoried property if the arrestee does not retrieve it within 30 days, even if the arrestee has

remained in custody as a pretrial detainee. 1

Petitioners, two former detainees who were held in

custody awaiting trial for more than 30 days and were

unable to engage someone to retrieve their property,

contend that what the Seventh Circuit aptly described

as the “City’s destroy-or-sell policy” (App. 2a) violates

the Fourth Amendment’s protection of “effects” as well

as the Takings Clause of the Fifth Amendment.

The Seventh Circuit held that the municipal policy

did not implicate the Fourth Amendment (App. 8a-10a)

and that there was no “taking” because petitioners voluntarily abandoned their property by failing to engage

someone to retrieve it. (App. 13a.)

Three other circuits interpret the Fourth Amendment

as the Seventh Circuit did in this case, holding that if the

initial seizure is lawful, the Fourth Amendment does not

require the police to protect property while it remains in

police custody. 2 The Ninth Circuit, as the Seventh

Other police departments retain arrestee property until after the

termination of criminal proceedings or send the property, along with

the detainee, to the pretrial detention facility. See infra at 7-8.

1

Denault v. Ahern, 857 F.3d 76, 83 (1st Cir. 2017); Shaul v. Cherry

Valley-Springfield Cent. Sch. Dist., 363 F.3d 177, 187 (2d Cir. 2004);

Fox v. Van Oosterum, 176 F.3d 342, 350-51 (6th Cir. 1999). See infra

at 11-13.

2

-4Circuit acknowledged (App. 9a) follows a contrary rule. 3

The Fourth Circuit is in accord with the Ninth. 4

Recent scholarship presents clear guidance about the

intent of the Framers to protect personal property when

they included “effects” in the Fourth Amendment. 5 This

case provides an appropriate vehicle for the Court to resolve the conflict between the circuits and restore the

“effects” clause of the Fourth Amendment to the role intended by the Framers.

STATEMENT

1. Petitioner Blake Conyers was arrested by Chicago police officers in February of 2012; the officers inventoried Conyers’s personal property—an earring, a

bracelet and two cell phones. (App. 2a.) The Chicago Police Department retained those items when Conyers was

transferred to the county detention facility to await trial.

(App. 2a-3a.) Chicago destroyed Conyers’s property

when he failed to retrieve it within 30 days of his arrest.

(App. 5a.)

Petitioner Kevin Flint was arrested by Chicago police

officers in January of 2013; the officers inventoried

Flint’s cell phone and a ring. (App. 2a.) These items remained with the Chicago Police Department when Flint

was transferred to the county detention facility to await

trial. (App. 2a-3a.) Flint remained at the Cook County

Jail until May of 2013 (App. 52a) and learned on release

that the City had destroyed his property. (Id.)

Brewster v. Beck, 859 F.3d 1194, 1197 (9th Cir. 2017), discussed infra at 14-15.

3

Presley v. City of Charlottesville, 464 F.3d 480, 487–89 (4th

Cir.2006). See infra at 14.

4

Maureen E. Brady, The Lost “Effects” of the Fourth Amendment:

Giving Personal Property Due Protection, 125 YALE L.J. 946 (2016),

discussed infra at 16-17.

5

-52. The Chicago Police Department retained petitioners’ property pursuant to an explicit policy it had

adopted in 2007. (App. 2a.) The policy identifies the property that will accompany the arrestee to the Cook

County Jail; all other property, such as cell phones, wallets, and jewelry other than a “plain metal ring without

stones” is inventoried and held by the Chicago Police Department. (Id.) The department gives the arrestee a

written notice that the property held by the police department will be “considered abandoned” if not claimed

within 30 days of arrest. (App. 3a-4a.)

3. An ordinance of the City of Chicago requires that

all property seized during an inventory search of an arrestee will be sold or destroyed if not reclaimed within

30 days.” 6 The ordinance, which the Seventh Circuit

found is intended to relieve “constraints on storage space

for seized property” (App. 11a), does not include any exception for arrestees who are held in custody for more

than 30 days. The court of appeals found that the effect

of the ordinance is “to deem property abandoned after 30

days have elapsed.” (App. 13a.)

Evidence presented during summary judgment proceedings showed that from December 1, 2011 through

December 31, 2013, the City declared abandoned more

than 3,800 cell phones, 2,000 wallets, and 1,100 credit or

debit cards seized during inventory searches of arrestees

who remained in custody as pretrial detainees for more

than 30 days. 7 These items were destroyed or sold at auction, with proceeds paid “to the board of trustees of the

policemen’s annuity and benefit fund,” pursuant to

6

The ordinance, Chicago Municipal Code § 2-84-160, is reproduced

in the appendix, infra, at 104a-05a.

Report of Defendant’s Expert Jason T. Wright, District Court

Docket No. 182 at 101.

7

-6Chicago Municipal Code § 2-84-180 (reproduced in the

appendix, infra, at 106a).

4. Petitioner Conyers initiated this case in a pro se

complaint while a pretrial detainee. (District Court

Docket No. 1.) One of Conyers’s claims involved his personal property: Conyers had been arrested by Chicago

police officers; the officers sent some of Conyers’s property to the Cook County Jail, where it would be held

while he awaited trial; Conyers’s cell phone and jewelry

were retained by the Chicago Police Department for 30

days and then destroyed because Conyers failed to retrieve the property. (Complaint, Docket Item No. 1,

¶ 48.)

Conyers secured counsel and, along with petitioner

Kevin Flint and another co-plaintiff, filed a third

amended complaint, limited to the municipal policy to sell

or destroy arrestee personal property. 8 (Third Amended

Complaint, Docket Item No. 13.) Petitioners brought

claims under the Fourth, Fifth, and Fourteenth Amendments and sought to maintain the case for a class of persons “who have been permanently deprived of the use

and enjoyment of personal property because of the municipal policies described herein.” (Third Amended Complaint, ¶ 36.)

5. The district court rejected on a Rule 12(b)(6) motion to dismiss petitioners’ Fourth Amendment claim,

applying the Seventh Circuit’s holding in Lee v. City of

Chicago, 330 F.3d 456, 466 (7th Cir. 2003) that “the

Fourth Amendment is not implicated when a plaintiff’s

challenge concerns recovery of property that was lawfully seized and then retained by the defendant.” (App.

92a.) The district court concluded that “since the plaintiffs have not alleged that the City’s seizure of arrestees’

8

Lamar Ewing, the third co-plaintiff, is not a party to this petition.

-7property is unreasonable, they have not stated a cognizable § 1983 injury based on the Fourth Amendment.” (Id.)

The district court then turned to the Fifth Amendment Takings Claim (App. 92a-95a) and applied Williamson County. Reg’l Planning Comm’n v. Hamilton Bank

of Johnson City, 473 U.S. 172 (1985) to dismiss that claim

for failure to exhaust state remedies. (App. 93a.) The district court also dismissed petitioners’ Fourteenth

Amendment Due Process Claim complaining about inadequate notice (App. 9ga-101a) but invited petitioners to

cure the pleading deficiencies in an amended complaint.

(App. 102a.)

6. Petitioners amended their complaint to restate

their Fourteenth Amendment claim about the sufficiency of notice. 9 (Fourth Amended Complaint, ¶¶ 15-27,

(Docket Item No. 81.) The district court allowed that

claim to go forward (App. 83a-84a) and subsequently ordered the case to proceed as a class action under Federal

Rule of Civil Procedure 23(b)(3) for:

All persons who, following an arrest, had property inventoried as “available for return to Owner” by the

Chicago Police Department from December 1, 2011 to

December 31, 2013, who were then held in custody for

more than 30 days and whose property was destroyed

or sold by the Chicago Police Department.

(App. 66a.)

7. Thereafter, the parties engaged in discovery, culminating in cross-motions for summary judgment. Chicago engaged a police practices expert, who compared

the Chicago policy to that followed in other municipalities (Report of Defendant’s Expert Dr. Jon Shane,

Petitioners do not raise the Fourteenth Amendment notice claim

in this petition.

9

-8District Court Docket No. 174-14.) The expert compared

the Chicago procedures with those followed by four

other police departments; none of the other agencies employed Chicago’s “destroy-or-sell” policy. Three municipalities do not retain any arrestee property, but transfer

it, along with the detainee, to the pretrial detention facility. 10New York City is the only police department that

retains arrestee property. Unlike Chicago, New York

City does not destroy the property while a criminal case

is pending but will hold the property until 120 days after

the termination of criminal proceedings.11

8. This Court decided Knick v. Township of Scott,

139 S. Ct. 2162 (2019) while the fully briefed summary

judgment motions were awaiting decision. Petitioners

asked the district court to reconsider its dismissal of

their Takings Claims. (Motion to Reconsider, District

Court Docket No. 201.) The City agreed “that the premise of the Court’s dismissal of the plaintiffs’ takings claim

has been invalidated by Knick,” but argued that the Takings Claim failed “because the City did not take the plaintiffs’ property ‘for public use’ but rather pursuant to the

City’s police powers.” (Response to Motion to Reconsider, District Court Docket No. 217 at 18.)

9. The district court granted the City’s motion for

summary judgment. (App. 20a-46a.) The district judge

rejected the Takings Claim, reasoning that petitioners

had failed to show a “public purpose” for the taking.

(App. 44a.) The district court then turned to the Due Process Claim and concluded that the class had received

These municipalities are Newark, New Jersey, Los Angeles, California, and Portland, Oregon. (Shane Report at 12-14, District

Court Docket No. 174-14 at 16-18.)

10

The notice provided to arrestees by the New York City Police Department, which sets out the 120-day period, appears in the district

court docket as Item No. 182 at 103.

11

-9adequate notice because instructions to reclaim property

were available on the police department’s website. (App.

25a-40a.)

10. The Seventh Circuit affirmed. (App. 1a-19a.) The

court of appeals rejected petitioners’ Fourth Amendment claim on the basis of Lee v. City of Chicago, 330

F.3d 456 (7th Cir. 2003). (App. 9a.) Petitioners argued

that this Court’s post-Lee decision in Manuel v. Joliet,

137 S. Ct. 911 (2017) showed that the Fourth Amendment “applies to a continuing seizure.” (App. 9a.) The

court of appeals acknowledged that the Ninth Circuit

had read Manuel this way in Brewster v. Beck, 859 F.3d

1194 (9th Cir. 2017) but concluded that Manuel did not

control because it “dealt with pretrial confinement, not

the retention of property.” (App. 9a.) In addition, the

Seventh Circuit viewed Manuel as limited to cases

where “the seizure and detention [were] flawed from the

outset” (App. 10a), unlike this case, where petitioner

agreed that the police were entitled to inventory their

property.

The Seventh Circuit then turned to the Takings Claim

and concluded that there had not been any taking because petitioners had “intentionally relinquished” their

inventoried property (App. 11a) and had received ample

notice that their property would be forfeit if they did not

reclaim it within 30 days. (App. 13a.)

REASONS FOR GRANTING THE PETITION

Police officers routinely inventory the personal property (or “effects”) of arrestees “to protect an owner’s

property while it is in the custody of the police, to insure

against claims of lost, stolen, or vandalized property, and

to guard the police from danger.” Colorado v. Bertine,

479 U.S. 367, 372 (1987). Many state courts view an

-10inventory search as creating a “temporary storage

bailee.” 12

The Seventh Circuit held in this case that the power

to inventory arrestee property vests the government

with the right to “dispose of it as it sees fit” when the

property is not reclaimed within 30 days. (App. 13a.)

Petitioners and thousands of other similarly situated

persons could not reclaim their property in 30 days because they were in custody as pretrial detainees. The

Seventh Circuit held that this “destroy-or-sell” policy

(App. 2a) does not violate the Fourth or Fifth Amendments (App. 8a-10a) and thereby continued a circuit split

on an important question about the scope of the Fourth

Amendment.

I.

The circuits are divided on whether the Fourth

Amendment protects an individual’s interest in

personal property that has been lawfully seized

The courts of appeals for the First, Second, and Sixth

Circuits follow the rule applied by the Seventh Circuit in

this case that the “the Fourth Amendment protects an

individual’s interest in retaining possession of property

but not the interest in regaining possession of property.”

Fox v. Van Oosterum, 176 F.3d 342, 351 (6th Cir. 1999).

The court of appeals for the Fourth and Ninth Circuits

follow the contrary rule, holding that the scope of the

Fourth Amendment includes acts that interfere with

possessory interests.

This phrase first appeared in People v. Ortiz, 147 Cal. App. 2d 248,

249, 305 P.2d 145, 147 (1956). See infra at 18.

12

-11A. The rule followed by the First, Second,

Sixth, and Seventh Circuits

Fox v. Van Oosterum, 176 F.3d 342, 351 (6th Cir. 1999)

is the first published appellate decision to consider

whether the Fourth Amendment requires the police to

return property that had been lawfully seized. There, police seized a driver’s license and wallet (both belonging

to Fox) during an inventory search of a lawfully seized

truck. The officers agreed to return the wallet but refused to return the driver’s license. Fox then brought

suit under 42 U.S.C. § 1983 complaining about the refusal

to return his driver’s license. The district court dismissed the action and a divided panel of the Sixth Circuit

affirmed.

The panel majority held “that no seizure occurred

when the defendants refused to return Fox’s license, and

therefore no Fourth Amendment violation.” 176 F.3d

at 349. “Once that act of taking the property is complete,

the seizure has ended and the Fourth Amendment no

longer applies.” Id. at 351. Judge Clay, dissenting,

pointed out that the panel majority had not cited “a single case in support of the narrow view that a seizure begins and ends at the moment it takes place.” Id. at 355

(Clay, J., dissenting).

The Seventh Circuit considered this issue in Lee v.

City of Chicago, 330 F.3d 456 (7th Cir. 2003). There,

Lee’s automobile had been struck by “stray gunfire.” id.

at 458, and the police seized the vehicle to “search for,

retrieve, and analyze any bullets that might have become

lodged in it.” Id. at 458-59. After the police had completed their search, Chicago informed Lee that he could

retrieve his vehicle if he paid the storage and towing

fees. Id. at 459. Lee challenged the City’s right to collect

these fees, arguing that demand for payment of fees

-12resulted in an unlawful seizure. The district court dismissed the action and the Seventh Circuit affirmed.

The Seventh Circuit concluded that the word “secure”

in the Fourth Amendment limited the protections of the

amendment to the initial seizure of property, after which

“the individual is no longer secure in his possessory interest within the meaning of the amendment.” 330 F.3d

at 462. The court of appeals also relied on its decision in

Wilkins v. May, 872 F.2d 190 (7th Cir. 1989) where it had

rejected the concept of a “continuing seizure.” Id. at 463.

The Second Circuit followed Lee in Shaul v. Cherry

Valley-Springfield Cent. Sch. Dist., 363 F.3d 177 (2d Cir.

2004), a case that involved the property of a teacher suspended from employment. One of the teacher’s claims involved his personal property that the school failed to

return after the suspension. Id. at 187. The teacher argued that the failure to return the items “constitutes an

unreasonable seizure.” Id. The court of appeals disagreed, citing Fox v. Van Oosterum, supra, and Lee v.

Chicago, supra, to conclude that the Fourth Amendment

does not protect “an unreasonable refusal to return property.” Id.

In Denault v. Ahern, 857 F.3d 76 (1st Cir. 2017), police

seized a vehicle to search it for evidence of a crime. After

determining that the car did not contain such evidence,

the officers delivered the vehicle to a towing company,

which refused to release the vehicle without payment for

storage and towing charges. One of the issues on appeal

was whether “the retention of the seized property, and

its transfer to the tow company, violated the United

States Constitution.” Id. at 83. The First Circuit followed the cases cited above and concluded that when “an

initial seizure of property was reasonable, defendants’

failure to return the items does not, by itself, state a

-13separate Fourth Amendment claim of unreasonable seizure.” Id. at 83.

The court of appeals in Denault considered whether a

different result was required by this Court’s decision in

Manuel v. City of Joliet, 137 S. Ct. 911 (2017), but held

that Manuel was limited to seizure of “a person rather

than property.” Denault, 857 F.3d at 84. The First Circuit suggested that the appropriate remedy would be under “the Fifth Amendment’s express protections for

property.” Id.

The Seventh Circuit in this case likewise concluded

that Manuel did not undermine its previous holding in

Lee v. City of Chicago, supra. In the view of the court of

appeals, Manuel is not controlling because it “dealt with

pretrial confinement, not the retention of property”

(App. 9a) and is limited to cases where “the seizure and

detention [is] flawed from the outset.” (App. 10a.)

The Seventh Circuit’s view of Manuel is inconsistent

with the Court’s opinion in that case, which carefully separated the plaintiff’s claim about his initial arrest and his

claim about his “subsequent weeks in custody.” Manuel,

137 S. Ct. at 919.

Moreover, the Fourth Amendment does not provide

any different protection for seizures of the person and

seizures of effects. As Justice Gorsuch pointed out in his

dissenting opinion in Torres v. Madrid, 141 S. Ct. 989,

1007 (2021), “The Fourth Amendment’s Search and Seizure Clause uses the word “seizures” once in connection

with four objects (persons, houses, papers, and effects).”

Id. at 1007.

Finally, as Professor Sacharoff notes, none of these

cases addressed the history of the Fourth Amendment. Laurent Sacharoff, The Fourth Amendment Inventory as a Check on Digital Searches, 105 IOWA L.

-14REV. 1643, 1696 (2020). These cases “confuse[] seizures

with searches” because “even after completion of the

search, the seizure continues beyond the initial taking of

the items.” Id. at 1697. Thus, “the Fourth Amendment

should continue to apply to the seizure of property after

the initial taking.” Id. This is the rule followed by the

Fourth and Ninth Circuits.

B. The contrary rule followed by the Fourth

and Ninth Circuits

The Fourth Circuit first recognized that retaining

property after a lawful seizure may violate the Fourth

Amendment in Moms, Inc. v. Willman, 109 F. App’x 629

(4th Cir. 2004). There, officers stole property that had

been seized pursuant to a search warrant. The court of

appeals held that the theft, which occurred after the initial seizure, violated the Fourth Amendment but concluded that that right had not been “clearly established

when the theft allegedly occurred.” 13 Id. at 636.

The Fourth Circuit again applied the Fourth Amendment to conduct that occurred after an initial seizure of

property in Presley v. City of Charlottesville, 464 F.3d

480 (4th Cir. 2006). That case arose from the erroneous

designation by the municipality of Pressley’s home and

yard as the site of a public trail. Id. at 482. Pressley filed

suit after the City refused to withdraw the designation,

which had caused members of the public to travel “across

Presley’s yard, leaving behind trash, damaging the vegetation, and sometimes even setting up overnight camp

sites.” Id. at 482.

Moms was decided before Pearson v. Callahan, 555 U.S. 223

(2009), where the Court abrogated Saucier v. Katz, 533 U.S. 194

(2001) and authorized the lower federal courts to resolve the “clearly

established” question before deciding constitutional issues.

13

-15A divided panel of the Fourth Circuit held that the

municipality’s action violated the Fourth Amendment

because it had caused “meaningful interference with an

individual’s possessory interests in that property.” 464

F.3d at 482, quoting United States v. Jacobsen, 466 U.S.

109, 113 (1984). Judge Traxler dissented, asserting that

the Fourth Amendment should be limited to “relatively

brief and completed seizures” and should not apply to a

“continuing seizure.” 464 F.3d at 494 (Traxler, J., dissenting).

The Ninth Circuit followed the Fourth Circuit in

Brewster v. Beck, 859 F.3d 1194 (9th Cir. 2017). There,

officers had impounded a vehicle because the driver had

a suspended license. Id. at 1195. The officers insisted on

holding the vehicle for 30 days, relying on a state statute.

Id. The vehicle owner challenged the 30-day hold as unreasonable under the Fourth Amendment. Id. at 1196.

The Ninth Circuit agreed with the vehicle owner,

holding that “[t]he Fourth Amendment doesn’t become

irrelevant once an initial seizure has run its course.” 859

F.3d at 1197. 14 The court of appeals relied on Manuel v.

City of Joliet, supra, to support its disagreement with

the decision of the Seventh Circuit in Lee v. City of Chicago, 330 F.3d 456 (7th Cir. 2003).

The Ninth Circuit reaffirmed this view of the Fourth

Amendment in Sandoval v. County of Sonoma, 912 F.3d

509 (9th Cir. 2018). There, after lawfully seizing a vehicle,

the police held it for 30 days pursuant to state law and

county policy. Id. at 513-14. The court of appeals upheld

14

The Ninth Circuit did not apply this holding to the theft of items

that had been seized pursuant to a search warrant in Jessop v. City

of Fresno, 936 F.3d 937 (9th Cir. 2019) because the alleged theft in

Jessop had occurred in 2013, four years before Brewster. Id. at 942.

-16the grant of summary judgment to the motorist because

the municipality could not justify its continued retention

of the vehicle. Id. at 516-17.

The conflict between the circuits is well-defined and is

ripe for resolution.

C. The conflict is ripe for resolution

The decision of the Tenth Circuit in Springer v. Albin,

398 F. App’x 427 (10th Cir. 2010) shows that the framework the Court adopted in Pearson v. Callahan, 555 U.S.

223 (2009) for resolving claims of qualified immunity

makes it unlikely that other circuits will take sides on the

conflict presented in this case.

Springer arose from execution of a search warrant

and seizure of currency; the plaintiff alleged that the officers had stolen some of the currency. The Tenth Circuit

noted the circuit split discussed above, 398 F. App’x

at 434-36 and declined to resolve the constitutional question because the absence of clearly established law entitled the officers to qualified immunity. Id. at 436. The

Ninth Circuit reached the same result in Jessop v. City

of Fresno, 936 F.3d 937 (9th Cir. 2019) when it upheld a

grant of qualified immunity because the officer’s acts

(stealing property that had been described in a search

warrant) pre-dated the Ninth Circuit’s decision in Brewster v. Beck, 859 F.3d 1194 (9th Cir. 2017) (discussed

above at 15 n.14) and was factually distinguishable from

that case. Jessop, 936 F.3d at 941-42.

This case, brought against a municipality because of

an express policy, comes to the Court without any issue

of qualified immunity, Owen v. City of Independence, 445

U.S. 622, 638 n.18 (1980), and provides the Court with an

opportunity to resolve the conflict between the circuits.

-17II.

Recent scholarship demonstrates that the

Fourth Amendment protects “effects” that

remain in the custody of the government after a

lawful seizure

The Fourth Amendment should “provide at a minimum the degree of protection it afforded when it was

adopted.” United States v. Jones, 565 U.S. 400, 411 (2012)

(emphasis in original). Recent scholarship provides “precise guidance from the founding era,” Riley v. California, 573 U.S. 373, 385 (2014), on the Framer’s view that

the Fourth Amendment protects “effects” lawfully

seized.

Professor Brady “provides a new historical account of

Founding-era debates focused specifically on personal

property” in her carefully researched article The Lost

“Effects” of the Fourth Amendment: Giving Personal

Property Due Protection, 125 YALE L. J. 946, 951 (2016).

In her “review of the textual history of effects,” id.

at 981, Professor Brady notes that the word “effects” in

the Fourth Amendment replaced “their other property”

in a draft proposed by James Madison, id. at 984, and, as

this Court concluded in Oliver v. United States, 466 U.S.

170, 177 & n.7 (1984), meant “personal property.” Id.

at 985-987.

Professor Brady’s thorough canvassing of the historical record shows that “effects” were included in the

Fourth Amendment “because of the risk of mishandling

or damage generally associated with interferences with

personal property,” as well as the “harms to privacy and

dignity that could be incurred by their inspection.” Id.

at 987. “Interferences with personal property threatened privacy interests with respect to that property but

also a person’s interests in continued possession and control of the unadulterated object.” Id. at 994.

-18This Court recognized a person’s interest in continued

possession in Warden v. Hayden, 387 U.S. 294 (1967)

when it quoted from Entick v. Carrington 19 How.St.Tr.

1029, 1066 that one of the evils of general warrants is that

they “enabled ‘the party’s own property (to be) seized

before and without conviction, and he has

no power to reclaim his goods, even after his innocence

is cleared by acquittal.’” 387 U.S. at 304.

The Fourth Amendment permits a police department

to inventory the personal property of an arrestee, Illinois v. Lafayette, 462 U.S. 640, 646 (1983), “to protect an

owner’s property while it is in the custody of the police,

to insure against claims of lost, stolen, or vandalized

property, and to guard the police from danger.” Colorado

v. Bertine, 479 U.S. 367, 372 (1987). But the Fourth

Amendment does not drop out of the picture after the

property is originally seized, just as it does not fade away

after an arrestee’s probable cause hearing. Manuel, 137

S. Ct. at 919. Under the original understanding of

Fourth Amendment, which places the protection of “effects” and “persons” on equal footing, the government’s

treatment of property after it is seized must be reasonable.

The rule applied by the court below gives the government free rein to handle arrestee property “as it sees

fit.” (App. 13a.) In this case, the rule permits the City of

Chicago to sell or destroy arrestee property simply because the owner of the property is in custody as a pretrial

detainee.

The general view among the state courts is that a police department that seizes arrestee property is a “temporary storage bailee.” People v. Ortiz, 147 Cal. App. 2d

-19248, 249, 305 P.2d 145, 147 (1956). 15 The Framers understood that a bailment required the bailee to keep the

property safe. 2 W. Blackstone, COMMENTARIES ON THE

LAWS OF ENGLAND 452. This case provides the Court

with an opportunity to restore this portion of the Fourth

Amendment to its intended meaning.

III.

The importance of resolving the conflict

The thousands of cell phones and pieces of jewelry

that the City of Chicago sells or destroys under its policy

are of special importance to petitioners and to other persons impacted by the policy.

Cell phones are especially valuable property, collecting “in one place many distinct types of information—an

address, a note, a prescription, a bank statement, a

video—that reveal much more in combination than any

isolated record.” Riley v. California, 573 U.S. 373, 394

(2014). Jewelry is also valuable property; some pieces

have “pretium affectionis,” possessing a value to the

owner greater than its cost.

The Seventh Circuit sought to minimize the harm of

Chicago’s “destroy-or-sell policy” by asserting that pretrial detainees who failed to engage “a representative”

were voluntarily abandoning their personal property.

Ortiz appears to the first case to use this phrase, which has been

followed in numerous decisions. See, e.g., Heffley v. State, 83 Nev.

100, 103, 423 P.2d 666, 668 (1967); St. Clair v. State, 1 Md. App. 605,

615, 232 A.2d 565, 570 (1967); State v. Wallen, 185 Neb. 44, 47, 173

N.W.2d 372, 374 (1970); People v Robinson, 320 N.Y.S.2d 665, 669,

36 A.D.2d 375, 378, (1971); State v. Phifer, 39 N.C. App. 278, 286, 250

S.E.2d 309, 314 (1979); State v. Peck, 194 Wash. 2d 148, 155, 449 P.3d

235, 239 (2019).

15

-20(App. 13a.) This argument is similar to that rejected by

the Court in Griffin v. Illinois, 351 U.S. 12 (1956) when

it refused to “sanction such a ruthless consequence, inevitably resulting from a money hurdle erected by [the

City of Chicago]” and quoted the famous aphorism of Anatole France. 16 Id. at 23 (Frankfurter, J., concurring).

The Court should not be a party to such a result.

This case is an excellent vehicle for the Court to answer the important questions raised and to resolve the

circuit’s conflicting interpretations of the Fourth

Amendment.

CONCLUSION

The petition for writ of certiorari should be granted.

Respectfully submitted,

KENNETH N. FLAXMAN

Counsel of Record

JOEL A. FLAXMAN

200 S Michigan Avenue

Suite 201

Chicago, IL 60604

knf@kenlaw.com

(312) 427-3200

DECEMBER, 2021

Attorneys for Petitioners

“‘The law, in its majestic equality, forbids the rich as well as the

poor to sleep under bridges, to beg in the streets, and to steal bread.’

[citing] John Cournos, A Modern Plutarch, p. 27.” Griffin v. Illinois,

351 U.S. at 23 (1956) (Frankfurter, J., concurring).

16