Respondents Brief — Blake Conyers, et al., Petitioners v. City of Chicago, Illinois

No. 21-898

IN THE

Supreme Court of the United States

__________

BLAKE CONYERS AND KEVIN FLINT,

Petitioners,

v.

CITY OF CHICAGO,

__________

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

__________

BRIEF IN OPPOSITION

__________

CELIA MEZA

Corporation Counsel

of the City of Chicago

MYRIAM ZRECZNY KASPER*

Deputy Corporation Counsel

SUZANNE M. LOOSE

Chief Assistant

Corporation Counsel

ELLEN W. MCLAUGHLIN

Assistant Corporation Counsel

2 N. LaSalle Street, Suite 580

Chicago, IL 60602

(312) 744-3564/742-5147

myriam.kasper@cityofchicago.org

*Counsel of Record

COUNTERSTATEMENT

OF QUESTION PRESENTED

Whether this Court should decline to review

the Seventh Circuit’s holding that petitioners could

not proceed on a Fourth Amendment claim based on

respondent’s disposal of their personal items, where it

is undisputed that the property was reasonably seized

upon petitioners’ arrest, respondent’s procedures for

claiming the property satisfied due process, and

petitioners abandoned their property by failing to

claim it; and where petitioners articulate no Fourth

Amendment theory that would afford them relief in

any circuit.

i

ii

TABLE OF CONTENTS

Page

COUNTERSTATEMENT OF QUESTION

PRESENTED................................................................i

TABLE OF CONTENTS ............................................ ii

TABLE OF AUTHORITIES...................................... iii

STATEMENT ............................................................ 1

The Disposal of Petitioners’ Unclaimed Property ....... 1

The District Court Proceedings ................................... 1

The Court of Appeals’ Ruling ...................................... 4

REASONS FOR DENYING THE PETITION ............ 6

I.

PETITIONERS IDENTIFY NO CONFLICT

WARRANTING REVIEW ON THE ISSUE

PRESENTED. .................................................. 7

II.

THIS CASE IS A POOR VEHICLE FOR

CONSIDERING THE ISSUE PETITIONERS

PRESENT ...................................................... 17

III.

THE COURT OF APPEALS CORRECTLY

APPLIED SETTLED LAW TO REJECT

PETITIONERS’ CLAIM ................................ 20

CONCLUSION .......................................................... 23

iii

TABLE OF AUTHORITIES

CASES

Page

Abel v. United States,

362 U.S. 217 (1960) ....................................... 18

Alexandre v. Cortes,

140 F.3d 406 (2d Cir. 1998) .......................... 22

Ali v. Ramsdell,

423 F.3d 810 (8th Cir. 2005) ......................... 10

Brewster v. Beck,

859 F.3d 1194 (9th Cir. 2017) ........... 11, 13, 14

Byrd v. Stewart,

811 F.2d 554 (11th Cir. 1987) ......................... 9

California v. Hodari D.,

499 U.S. 621 (1991) ................................. 16, 17

Camara v. Municipal Court of the City and County of

San Francisco,

387 U.S. 523 (1967) ....................................... 19

Case v. Eslinger,

555 F.3d 1317 (11th Cir. 2009) ................. 7, 10

iv

TABLE OF AUTHORITIES – Continued

City of West Covina v. Perkins,

525 U.S. 234 (1999) ....................................... 21

Decker v. Hillsborough County Attorney’s Office,

845 F.2d 17 (1st Cir. 1988) ........................... 22

Denault v. Ahern,

857 F.3d 76 (1st Cir. 2017) ............................. 7

DiCesare v. Stuart,

12 F.3d 973 (10th Cir. 1993) ......................... 10

Fox v. Van Oosterum,

176 F.3d 342 (6th Cir. 1999) ........................... 8

Freeman v. City of Dallas,

242 F.3d 642 (5th Cir. 2001) ......................... 19

Gilmore v. City of Minneapolis,

837 F.3d 827 (8th Cir. 2016) ......................... 10

Hudson v. Palmer,

468 U.S. 517 (1984) ....................................... 16

Illinois v. Lafayette,

462 U.S. 640 (1983) ................................... 5, 19

Johnson v. Quander,

440 F.3d 489 (D.C. Cir. 2006) ..................... 7, 9

v

TABLE OF AUTHORITIES – Continued

Kripp v. Luton,

466 F.3d 1171 (10th Cir. 2006) ..................... 10

Langston v. Charter Township of Redford,

623 F. App’x 749 (6th Cir. 2015) ................... 21

Lee v. City of Chicago,

330 F.3d 456 (7th Cir. 2003) ............. 2, 5, 8, 21

Manuel v. City of Joliet,

137 S. Ct. 911 (2017) ........................... 5, 15, 16

Mathews v. Eldridge,

424 U.S. 319 (1976) ....................................... 21

Mom’s Inc. v. Willman,

109 F. App’x 629 (4th Cir. 2004) ....... 11, 12, 13

Monell v. Department of Social Services,

436 U.S. 658 (1978) ......................................... 4

Mora v. City of Gaithersburg,

519 F.3d 216 (4th Cir. 2008) ......................... 22

Mullane v. Central Hanover Bank & Trust Co.,

339 U.S. 306 (1950) ....................................... 21

Presley v. City of Charlottesville,

464 F.3d 480 (4th Cir. 2006) ................... 11, 12

vi

TABLE OF AUTHORITIES – Continued

Revell v. Port Authority of New York, New Jersey,

598 F.3d 128 (3d Cir. 2010) ............................ 9

Shaul v. Cherry Valley-Springfield Central School

District,

363 F.3d 177 (2d Cir. 2004) ............................ 8

Soldal v. Cook County,

506 U.S. 56 (1992) ......................................... 18

Thompson v. Whitman,

85 U.S. 457 (1873) ......................................... 16

Ticor Title Insurance Co. v. Brown,

511 U.S. 117 (1994) ....................................... 18

Torres v. Madrid,

141 S. Ct. 989 (2021) ............................... 15, 17

United States v. Place,

462 U.S. 696 (1983) ................................. 13, 14

United States v. Thomas,

864 F.2d 843 (D.C. Cir. 1989) ....................... 18

Wagner v. Higgins,

754 F.2d 186 (6th Cir. 1985) ......................... 12

vii

TABLE OF AUTHORITIES – Continued

Winters v. Board of County Commissioners,

4 F.3d 848 (10th Cir. 1993) ........................... 10

ORDINANCES

Municipal Code of Chicago, Ill. § 2-84-160(c)(1) ..... 1

OTHER AUTHORITES

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

Amendment: Giving Personal Property Due

Protection,”

125 YALE L. J. 946 (2016) .............................. 17

Laurent Sacharoff, “The Fourth Amendment

Inventory as a Check on Digital Searches,”

105 IOWA L. REV. 1643 (2020) ....................... 17

STATEMENT

The Disposal of Petitioners’ Unclaimed Property

Petitioners were arrested by officers of the

Chicago Police Department (“CPD”). Pet. 4. At the

time of their arrest, CPD seized, inventoried, and

stored items in petitioners’ possession that were not

permitted in CPD’s lockup. Ibid. Petitioners were

then transferred to the Cook County Jail to await

trial, and CPD continued to store the property that

Cook County did not permit arrestees to take to the

jail. Ibid. CPD’s policy was to give arrestees a

receipt for their stored items and a notice explaining

how to retrieve them. Pet. App. 3a. The notice

pointed arrestees to further information on CPD’s

website explaining how those in custody could claim

their property. Id. at 4a. After 30 days, property

unclaimed by the owner or the owner’s authorized

representative was deemed abandoned, pursuant to a

Chicago ordinance. Municipal Code of Chicago, Ill.

§ 2-84-160(c)(1); Pet. App. 104a-105a. Petitioners

failed to claim their property, and CPD disposed of it.

Pet. 4.

The District Court Proceedings

Petitioners filed a complaint alleging that CPD’s

disposal of their unclaimed property violated the

Fourth Amendment, the Takings Clause of the Fifth

Amendment, and the Due Process Clause of the

Fourteenth Amendment. Pet. 6; R. 59 at 2, 4.

The district court dismissed petitioners’ Fourth

Amendment claim. Pet. App. 92a. The claim, it

2

explained, was barred by the Seventh Circuit’s

decision in Lee v. City of Chicago, 330 F.3d 456 (7th

Cir. 2003), because petitioners challenged not the

City’s seizure of their property pursuant to arrest,

which was concededly reasonable, but the City’s

retention of the property and procedures for claiming

it, and Lee held that the Fourth Amendment does not

apply to the recovery of lawfully seized property.

Ibid.

The district court dismissed petitioners’ takings

claim for failure to exhaust state remedies, Pet. App.

93a, and their procedural due process claim for lack of

standing, id. at 101a. Petitioners lacked standing

because, although they alleged that the notice CPD

gave arrestees explaining how to claim property was

flawed, they did not claim that they “detrimentally

relied on” the notice, id. at 100a, or that the

procedures were “constitutionally deficient,” id. at 97a

n.10. The court allowed petitioners to replead their

due process claim. Id. at 102a.

Petitioners did so, alleging that although the

notice CPD gave arrestees about property retrieval

procedures stated that further information was

available on CPD’s website, that information was not

accessible to persons detained at the Cook County

Jail, and thus no adequate procedure existed for jailed

individuals to reclaim their property. R. 81 at 5-6.

Petitioners alleged that they should have been given

“individualized notice” and a hearing before CPD

disposed of their items, id. at 6-7, and that respondent

3

therefore deprived them of their property without due

process, in violation of the Fourteenth Amendment, or

just compensation, in violation of the Fifth

Amendment, id. at 9-11.

The district court again dismissed petitioners’

Fifth Amendment takings claim, Pet. App. 79a, but it

allowed petitioners’ procedural due process claim to

proceed, id. at 84a, and certified a class, id. at 66a.

After discovery, the district court granted

respondent’s motion for summary judgment on

petitioners’ due process claim. Pet. App. 46a. The

court explained that the only disputed issue was

whether petitioners had access to information about

how to retrieve their stored property. Id. at 25a.

The court therefore examined whether the content of

CPD’s website satisfied respondent’s obligation to

provide notice to arrestees about how to retrieve their

belongings; whether inmates at the Cook County Jail

could access the website’s content; and whether the

information appeared on the website during the

relevant period. Id. at 25a-26a.

Based on the parties’ evidence, the district court

answered each of these questions in the affirmative.

The court explained that CPD’s website contained

“specific and detailed notice of the procedures” by

which property could be retrieved. Pet. App. 26a.

Indeed, “plaintiffs d[id] not contest” that the

information, if available to inmates, satisfied

respondent’s notice obligations. Id. at 27a. As to

4

Cook County Jail inmates’ access to the information,

the record established that jail social workers and law

librarians could provide the information to inmates.

Id. at 27a-28a. Finally, CPD’s website was active

during the class period. Id. at 33a-34a. The district

court therefore held that “the City’s procedures for

obtaining the return of property seized at the time of

arrest were generally available to those transported

to the Cook County Jail following arrest,” and

accordingly, “no individual notice was required”

before CPD disposed of petitioners’ unclaimed

property. Id. at 36a. The court noted that 75% of

arrested individuals claimed their items, and that

“sporadic” failures to follow “established procedures”

would not support liability under Monell [v.

Department of Social Services, 436 U.S. 658 (1978)].”

Id. at 37a-38a.

Finally, the court rejected

petitioners’ claim that they were entitled to a hearing

before CPD disposed of their property, explaining that

CPD’s procedures satisfied due process. Id. at 38a39a. The court also denied petitioners’ motion for

reconsideration of the dismissal of their Fifth

Amendment claim. Id. at 44a-45a. Petitioners

appealed. R. 220.

The Court of Appeals’ Ruling

The Seventh Circuit affirmed the district court’s

judgment in respondent’s favor. Pet. App. 1a-19a.

The court first noted that CPD’s “right to seize and

inventory . . . property upon arrest is not at issue. It

is well settled that it may do so.” Id. at 2a (citing

5

Illinois v. Lafayette, 462 U.S. 640, 646 (1983)).

Regarding petitioners’ Fourth Amendment claim,

the court held that the “question whether the City had

a duty to release the property sooner, or on more

favorable terms,” was an issue that fell “more

naturally under the Due Process Clause of the

Fourteenth Amendment.” Pet. App. 10a. The court

therefore followed its decision in Lee and rejected the

claim. Id. at 9a. It further explained that Manuel

v. City of Joliet, 137 S. Ct. 911 (2017), did not support

a different result. Manuel had nothing to do with

retention of property.

It involved a pretrial

detainee’s seizure and detention that were “flawed

from the outset” because they were based on

fabricated evidence. Id. at 9a-10a. Petitioners’ case

presented no similar issue because CPD lawfully

seized their property pursuant to arrest. Id. at 10a.

The court of appeals affirmed the dismissal of

petitioners’ Fifth Amendment takings claim as well.

Pet. App. 13a. It reasoned that respondent was

entitled to treat petitioners’ property “as abandoned”

after it went unclaimed for 30 days; petitioners were

advised of how to claim the property and the deadline

to do so. Ibid. There was “nothing unconstitutional

about the City’s decision to deem property abandoned

after 30 days,” and because “abandoned property does

not belong to anyone,” the City could “dispose of it as

it s[aw] fit.” Ibid.

Finally, the court affirmed the judgment for

6

respondent on petitioners’ procedural due process

claim.

It concluded that the content on CPD’s

website “explains just what a detainee must do, either

in person or through a delegate, to ensure the recovery

of property.”

Pet. App. 14a.

The evidence

established that the website was active and its

information accessible to jail inmates. Id. at 14a18a. Petitioners failed to meet their burden “to show

why the system” established for inmates to claim their

stored property “was constitutionally inadequate.”

Id. at 18a.

REASONS FOR DENYING THE PETITION

Petitioners complain that the court of appeals

wrongly rejected their Fourth Amendment claim

premised on CPD’s disposal of their unclaimed

property. In seeking review, they assert that other

circuits have reached decisions inconsistent with the

holding below. But petitioners fail to acknowledge

the consensus among the circuits on the precise issue

in their case. Indeed, petitioners could not obtain

relief on a Fourth Amendment theory in any circuit.

No court of appeals has held that if the seizure that

divested an owner of property was lawful, and the

owner failed to claim it, the government’s disposal of

the property implicates the Fourth Amendment.

Petitioners’ claim of conflict in the context of the facts

here should therefore be rejected. Petitioners also

misrepresent the decision below, in which the court of

appeals correctly applied established procedural due

process principles to reject their claim. The petition

7

should be denied.1

I.

PETITIONERS IDENTIFY NO CONFLICT

WARRANTING REVIEW ON THE ISSUE

PRESENTED.

The courts of appeals generally agree that, while

the Fourth Amendment’s protections apply to

property at the time of seizure, if – as is undisputed

here – that seizure was reasonable, the Fourth

Amendment does not provide a cause of action to

challenge the government’s retention and disposal of

the property or the procedures for claiming property.

Those issues instead implicate procedural due

process, or perhaps state law.

Petitioners acknowledge that the First, Second,

Sixth, and Seventh Circuits follow this rule. Pet. 1013. They omit that the Eleventh and D.C. Circuits

do as well. E.g., Case v. Eslinger, 555 F.3d 1317,

1330 (11th Cir. 2009); Johnson v. Quander, 440 F.3d

489 (D.C. Cir. 2006).

For example, in Denault v. Ahern, 857 F.3d 76 (1st

Cir. 2017), the First Circuit held that a town’s

retention and transfer to a tow company of a lawfully

seized vehicle did not implicate the Fourth

Amendment, id. at 83-84, although the plaintiffs

Petitioners refer to the Fifth Amendment in their

Question Presented, Pet. (i), but they advance no Fifth

Amendment claim as a basis to grant their petition.

1

8

prevailed on a state-law tort claim, id. at 79.

In Shaul v. Cherry Valley-Springfield Central

School District, 363 F.3d 177 (2d Cir. 2004), the

Second Circuit rejected a teacher’s Fourth

Amendment claim against school officials who failed

to return personal items removed from his classroom.

Id. at 187. The court explained that if the “initial

seizure of property was reasonable,” the failure to

return it did not support “a separate Fourth

Amendment claim of unreasonable seizure,” although

it might implicate “procedural due process.” Ibid.

In Fox v. Van Oosterum, 176 F.3d 342 (6th Cir.

1999), the Sixth Circuit rejected a Fourth Amendment

claim based on the police’s refusal to return the

plaintiff’s seized driver’s license. Id. at 349-53. The

seizure, it explained, was complete when the license

was taken, and the refusal to return it “neither

brought about an additional seizure nor changed the

character of the [prior] seizure from a reasonable one

to an unreasonable one.” Id. at 350.

In Lee, the plaintiff’s car was lawfully impounded

for evidentiary purposes. 330 F.3d at 458-59. The

Seventh Circuit held that the refusal to return the car

unless the plaintiff paid a fee was not an additional

seizure that could violate the Fourth Amendment.

Id. at 460. It explained that the Fourth Amendment

governs a person’s interest in keeping their property

at the time it is taken, but not in regaining lawfully

taken property. Id. at 466.

9

In Case, the Eleventh Circuit held that where

police had probable cause to arrest the plaintiff for

theft and seize his allegedly stolen property, the

plaintiff could not challenge the retention of the

“legally seized” property as a Fourth Amendment

violation, although the circumstances “raise[d] an

issue of procedural due process under the Fourteenth

Amendment.” 555 F.3d at 1330; see also Byrd v.

Stewart, 811 F.2d 554, 554-55 (11th Cir. 1987) (claim

that police officers “failed to return the items seized”

was “a procedural due process claim”).

In the same vein, the D.C. Circuit, in Johnson,

440 F.3d 489, rejected a probationer’s Fourth

Amendment challenge to the government’s storage

and later use of his DNA and blood samples. The

court explained that if a DNA sample “is taken in

conformance with the Fourth Amendment, the

government’s storage and use of it does not give rise

to an independent Fourth Amendment claim,” id. at

499, and that in the case of blood samples, the

“‘search’ is completed upon the drawing of the blood,”

id. at 500.

Support for the view that the Fourth Amendment

governs the taking of property, but not its retention or

disposition, extends beyond these six circuits, too.

The Third, Eighth, and Tenth Circuits have

approvingly cited the above cases in dicta or indicated

agreement with a similar approach. E.g., Revell v.

Port Authority of New York, New Jersey, 598 F.3d 128,

138 (3d Cir. 2010) (citing Case and distinguishing

10

between claim based on “initial seizure” and claim

based on retention of property and failure to provide

notice and hearing); Ali v. Ramsdell, 423 F.3d 810,

814 (8th Cir. 2005) (expressing “considerable doubt”

whether claim based on improperly inventoried and

stored property stated Fourth Amendment claim);

Gilmore v. City of Minneapolis, 837 F.3d 827, 838 (8th

Cir. 2016) (qualified immunity for officer sued under

Fourth Amendment for destruction of a protestor’s

sign where seizure of sign was lawful); Kripp v. Luton,

466 F.3d 1171, 1176-77 (10th Cir. 2006)

(distinguishing between challenge to “initial seizure”

– a Fourth Amendment claim – and “challenge to . . .

later process” before property is forfeited, which raises

due process concerns); see also DiCesare v. Stuart, 12

F.3d 973, 978 (10th Cir. 1993) (challenge to seizure of

plaintiff’s horses was a Fourth Amendment claim;

challenge to their later sale was a due process claim);

Winters v. Board of County Commissioners, 4 F.3d

848, 855 (10th Cir. 1993) (claim based on ring’s

seizure was a Fourth Amendment claim, while claim

based on its “ultimate disposition” was a due process

claim).

Crucially, no circuit has disagreed with the court

below that no Fourth Amendment claim exists on

facts like those here: where the government lawfully

seized property, provided a process to claim it, and

disposed of it when it went unclaimed.

Petitioners cite three cases to evince a purported

circuit split: Presley v. City of Charlottesville, 464

11

F.3d 480 (4th Cir. 2006); Mom’s Inc. v. Willman, 109

F. App’x 629 (4th Cir. 2004); and Brewster v. Beck, 859

F.3d 1194 (9th Cir. 2017). Pet. 14-15. Those cases,

however, do not demonstrate a genuine conflict on the

issue presented. Their facts are distinguishable, and

their reasoning would not support a different outcome

here.

In Presley, the City of Charlottesville distributed,

without the plaintiff’s consent, a map that showed a

public trail crossing a portion of the plaintiff’s

riverfront property. 464 F.3d at 482. The public

used the trail, “leaving behind trash, damaging the

vegetation, and sometimes even setting up overnight

camp sites” on the property. Id. The plaintiff sued

the city, alleging that her property had been

unreasonably seized, in violation of the Fourth

Amendment. Id. at 483. On those unique facts, the

Fourth Circuit held that by alleging that the city

encouraged private individuals to trespass within the

curtilage of her home, the plaintiff stated a valid

Fourth Amendment claim. Id. at 484 n.3, 487-89.

Presley – a case about the unreasonable seizure of

real property – does not suggest a different result in

this case, which involves personal property CPD

reasonably seized and stored, and then deemed

abandoned. Indeed, the Fourth Circuit stated that

“to prevail on a seizure claim, a plaintiff must prove

that the government unreasonably seized property.”

464 F.3d at 485 (emphasis in original). Presley did

not recognize a Fourth Amendment cause of action to

12

challenge the disposal of legally seized property.

Petitioners do not explain how Presley demonstrates a

circuit conflict on the issue they raise, and it does not.

Petitioners also cite an unpublished 2004 Fourth

Circuit decision.

Pet. 14.

In Mom’s Inc., the

plaintiffs alleged that federal agents stole a watch

while executing a search warrant. 109 F. App’x at

633. The Fourth Circuit stated that “such theft

violate[d] the Fourth Amendment,” but the officers

were entitled to qualified immunity. Id. at 637.

Mom’s Inc. does part ways with courts that have

held that theft of property after a legal search does not

implicate the Fourth Amendment. E.g., Wagner v.

Higgins, 754 F.2d 186, 187 (6th Cir. 1985) (allegation

that police stole personal items from a lawfully

impounded vehicle did not state a Fourth Amendment

claim); see also Ali, 423 F.3d at 814 (expressing doubt

that allegation that legally seized property was

improperly stored stated a Fourth Amendment claim).

But petitioners do not claim their property was stolen.

This is therefore not an appropriate case to resolve

any shallow split that might exist on whether theft

during a legal search implicates the Fourth

Amendment. And the Fourth Circuit has not opined

on the issue here, which, again, is whether the Fourth

Amendment provides a cause of action to challenge

procedures for claiming or disposing of legally seized

property.2

2

Citation of unpublished Fourth Circuit dispositions

13

Brewster also involved circumstances far afield of

the facts here. There, the Ninth Circuit allowed a

Fourth Amendment claim to proceed where the Los

Angeles Police Department (“LAPD”) impounded the

plaintiff’s vehicle for a mandatory 30 days under a

state statute after the plaintiff’s unlicensed relative

was stopped while driving the vehicle. 859 F.3d at

1195-96. The plaintiff appeared with a valid license

and offered to pay all towing and storage fees, but

LAPD refused to release the vehicle to her. Ibid.

The Ninth Circuit concluded that the 30-day seizure

was not justified because the initial exigency for

seizing the vehicle no longer existed. Id. at 1196-97.

Petitioners argue that unlike the court of appeals

below, the Ninth Circuit applied the Fourth

Amendment to the retention of property, not just the

initial taking. Pet. 14. But Brewster does not help

petitioners. The seizure itself in Brewster was for a

mandatory 30 days, and that was what the Ninth

Circuit deemed unreasonable. This Court has stated

that the duration of a seizure is a factor to be

considered in Fourth Amendment analysis. United

States v. Place, 462 U.S. 696, 710 (1983) (90-minute

detention of respondent’s luggage “went beyond the

narrow authority possessed by police to detain briefly

luggage reasonably suspected to contain narcotics”).

issued prior to January 1, 2007 is “disfavored.” 4th Cir. Local

R. 32.1. Moreover, the continued vitality of Mom’s Inc. is

debatable; in the eighteen years since Mom’s Inc. was decided,

other courts have rarely cited it.

14

Applying Place, the Ninth Circuit held that the 30-day

seizure in Brewster went too far, given the

government’s justification for seizing the plaintiff’s

vehicle. 859 F.3d at 1195-97.

Brewster’s approach would not supply petitioners

with a viable claim. In Brewster, unlike here, there

was no procedure available to Brewster for reclaiming

her property during the mandated 30-day holding

period.

Here in contrast, CPD does not hold

arrestees’ property for any mandated period;

petitioners could have retrieved their property at any

time, but they did not. And petitioners do not argue

that CPD held their property without justification, as

in Brewster. To the contrary, they imply that CPD

was required to store their property indefinitely. See

Pet. 3, 18-19. Brewster does not suggest that a

Fourth Amendment claim is available when lawfully

seized property may be reclaimed at any time, and a

plaintiff fails to use an available process to retrieve

the property.3

In sum, the courts of appeals have

overwhelmingly concluded that, if the seizure that

divested an owner of property was lawful, the

government’s retention or disposal of the property

does not implicate the Fourth Amendment. With no

3

Plaintiffs assert that the Seventh Circuit “acknowledged”

a split with the Ninth Circuit, Pet. i, 4, but that is incorrect. The

Seventh Circuit included a citation to Brewster but did not

recognize any circuit split on the issue presented in this case.

15

reason to think petitioners’ Fourth Amendment

challenge to respondents’ treatment of their stored

property would come out differently in any other

circuit, their claim of a circuit conflict fails.

Petitioners’ argument that the court of appeals’

decision conflicts with relevant decisions of this Court

is also incorrect.

Petitioners call the Seventh

Circuit’s decision “inconsistent with” this Court’s

decision in Manuel. Pet. 13. Manuel involved a

pretrial detainee’s seizure and detention based on

fabricated evidence. The Court explained that, “[i]f

the complaint is that a form of legal process resulted

in pretrial detention unsupported by probable cause,

then the right allegedly infringed lies in the Fourth

Amendment.” 137 S. Ct. at 919. Manuel said

nothing about property, let alone property that was

lawfully seized attendant to an arrest supported by

probable cause. And although petitioners assert that

“the Fourth Amendment does not provide any

different protection for seizures of the person and

seizures of effects,” Pet. 13, the Court recently

explained in Torres v. Madrid that the Fourth

Amendment does not treat the seizure of persons and

property as identical, but rather, the term” “seizure”

is “broad” and “the nature of a seizure can depend on

the nature of the object being seized,” 141 S. Ct. 989,

995, 1002 (2021).

Thus, the term “seizure”

encompasses multiple concerns with different legal

underpinnings. Id. at 995, 1001. Manuel does not

support plaintiffs’ claims regarding property or

conflict with the decision below.

16

Indeed, the court of appeals below followed the

Court’s long-standing precedent to interpret “seizure,”

in the Fourth Amendment context, to mean the act of

taking possession of property, not the continued

retention of the property.

See Thompson v.

Whitman, 85 U.S. 457, 471 (1873); California v.

Hodari D., 499 U.S. 621, 625 (1991)); see also Hudson

v. Palmer, 468 U.S. 517, 538-39 (1984) (O’Connor, J.,

concurring) (“[T]he handling of the property while in

the government’s custody is not itself of Fourth

Amendment concern.”).

In Thompson, a county official seized a vessel

charged with illegal clam raking off the New Jersey

coast. A state statute allowed a vessel to be seized

for such a violation within the county, but this vessel

was seized outside of the county and then transported

over the county line. 85 U.S. at 470. The county

official argued that his action was lawful because the

seizure was “continuous in its character,” meaning the

vessel was seized, or seized again, when it was towed

within county limits.

The Court rejected that

argument, holding that “[a] seizure is a single act, and

not a continuous fact.” Id. at 471. Years later, in

Hodari D., it stated that since “the time of the

founding,” a seizure has meant a single act of “taking

possession,” 499 U.S. at 624, not a continuous act, id.

at 625. And just last year, in Torres, the Court relied

on Hodari D. to reaffirm that “‘[a] seizure is a single

act, and not a continuous fact,’” 141 S. Ct. at 1002

(quoting Hodari D., 499 U.S. at 625). Thus, the

decision below is faithful to the Court’s understanding

17

of a Fourth Amendment seizure.

Finally, petitioners suggest that scholarship

supports their view, Pet. 17, but they cite nothing

relevant to this case. One cited article, Pet. 17,

discusses “personal property in public space,”

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

Amendment: Giving Personal Property Due

Protection,” 125 YALE L. J. 946 (2016). Another

addresses searches of mobile devices. Pet. 13-14

(citing Laurent Sacharoff, “The Fourth Amendment

Inventory as a Check on Digital Searches,” 105 IOWA

L. REV. 1643 (2020)). Neither applies the Fourth

Amendment to the retrieval of property reasonably

seized and stored by the government or its disposal

once abandoned.

II. THIS CASE IS A POOR VEHICLE FOR

CONSIDERING THE ISSUE PETITIONERS

PRESENT.

This case would also be a poor vehicle for review.4

Certiorari is inappropriate when “it is not clear that

[the Court’s] resolution of the constitutional question

will make any difference even to these litigants.”

Petitioners suggest that the Court should review this case

because it presents no qualified immunity issue, Pet. 16, but that

does not render this case unique. Seizure of property pursuant

to arrest is common and often gives rise to claims against local

governments that, like this one, do not present a qualified

immunity issue, as local governments are not entitled to

qualified immunity.

4

18

Ticor Title Insurance Co. v. Brown, 511 U.S. 117, 122

(1994). That describes this case. Even on the view

that petitioners’ allegations could sustain a Fourth

Amendment claim, petitioners could not prevail on

that claim, for two independent reasons.

First, the Seventh Circuit held that petitioners

abandoned their property. Pet. 3; Pet. App. 13a.

Petitioners do not challenge that holding, and it

forecloses their Fourth Amendment claim. A Fourth

Amendment seizure “occurs when there is some

meaningful interference with an individual’s

possessory interests” in property. Soldal v. Cook

County, 506 U.S. 56, 61 (1992). If property is

abandoned, the former owner has no interest in it.

The Fourth Amendment does not prohibit the seizure

of abandoned property. E.g., Abel v. United States,

362 U.S. 217, 241 (1960); United States v. Thomas,

864 F.2d 843, 845 (D.C. Cir. 1989). Thus, even on

petitioners’ view that the Fourth Amendment governs

“the government’s treatment of property after it is

seized,” Pet. 18, no Fourth Amendment protections

applied to the property once they abandoned it.

Second, petitioners never explain how they could

demonstrate a violation of the Fourth Amendment,

and they could not. The Fourth Amendment’s “basic

purpose . . . is to safeguard the privacy and security of

individuals

against

arbitrary

invasions

by

governmental officials.” Camara v. Municipal Court

of the City and County of San Francisco, 387 U.S. 523,

528 (1967). Thus, “[i]n the context of reviewing civil

19

administrative and regulatory enforcement of laws

enacted pursuant to the traditional police power,

Fourth Amendment reasonableness means nonarbitrariness.” Freeman v. City of Dallas, 242 F.3d

642, 654 (5th Cir. 2001).

Petitioners concede that a Fourth Amendment

claim turns on reasonableness, Pet. 18, but fail to

explain why CPD’s handling of their property was

unreasonable. Instead, they ignore the record and

submit that CPD will “sell or destroy arrestee

property simply because the owner of the property is

in custody as a pretrial detainee.” Pet. 18. But

CPD did not handle petitioners’ property in any such

arbitrary fashion. As the court of appeals explained,

Pet. App. 13a-14a, it reasonably seized the property

upon arrest, see Illinois v. Lafayette, 462 U.S. at 646,

inventoried it, established a procedure to claim it, and

disposed of it only after it went unclaimed. Plaintiffs

point to nothing – and there is nothing – unreasonable

about that.

III. THE COURT OF APPEALS CORRECTLY

APPLIED SETTLED LAW TO REJECT

PETITIONERS’ CLAIM.

The decision below was also correct and applied

settled law. In claiming otherwise, petitioners

repeatedly misrepresent both the record and the

decision below. They suggest that it is impossible for

individuals in custody to reclaim their property from

CPD, Pet. (i), 10; argue that CPD’s policies “harm”

20

arrestees, whose property is “of special importance,”

id. at 19; and contend that the Seventh Circuit’s

decision allows CPD to “sell or destroy arrestee

property simply because the owner of the property is

in custody,” id. at 18.

Again, however, the record shows that CPD

provided a process by which individuals in custody,

like petitioners, could reclaim their property. Pet.

App. 14a. (CPD’s website “explains just what a

detainee must do, either in person or through a

delegate, to ensure the recovery of property.”).

Individuals in custody at the Cook County Jail had

access to information about those procedures. Id. at

17a-18a. Only after petitioners failed to use CPD’s

system to retrieve their property did CPD treat it as

abandoned and dispose of it. Id. at 13a.

In addition, the Seventh Circuit did not hold, as

petitioners contend, that there are no constraints on

the government’s treatment of arrestees’ stored

property. Rather, it recognized that the applicable

constraints are imposed by the Due Process Clause.

Pet. App. 13a. It reviewed the evidence and held that

petitioners did not meet their “burden of proof” to

demonstrate

the

system

CPD

used

“was

constitutionally inadequate.” Id. at 18a.

In reaching that holding, the Seventh Circuit

applied well-established due process principles that

aid courts in assessing procedures for reclaiming

property from the government. See, e.g., Mullane v.

21

Central Hanover Bank & Trust Co., 339 U.S. 306, 313

(1950) (due process requires a hearing “appropriate to

the nature of the case”); Mathews v. Eldridge, 424 U.S.

319, 334-35 (1976) (explaining the “three distinct

factors” that should be considered in evaluating due

process); City of West Covina v. Perkins, 525 U.S. 234,

241 (1999) (no individualized notice of state-law

remedies is required if they are available to the public

through statutes and case law).

Unlike Fourth Amendment jurisprudence, due

process case law provides specific standards to

evaluate challenges to the government’s handling of

property, which courts routinely employ. E.g., Lee,

330 F.3d at 466 (“[I]n conducting a due-process

analysis to decide how, when, and under what terms

the property may be returned, the Fifth and

Fourteenth Amendments’ texts, histories, and judicial

interpretations . . . aid a court in balancing the

competing interests at stake.”); see also Langston v.

Charter Township of Redford, 623 F. App’x 749, 761,

763 (6th Cir. 2015) (rejecting plaintiff’s claim that

forfeiture of his property was an unreasonable

seizure, but allowing due process claim that he was

prevented from claiming it); Mora v. City of

Gaithersburg, 519 F.3d 216, 230 (4th Cir. 2008)

(plaintiff’s challenge to police’s retention of his seized

weapons turned on whether he had “notice and an

opportunity to be heard”); Alexandre v. Cortes, 140

F.3d 406, 410 (2d Cir. 1998) (arrestee’s claim that he

was deprived of his automobile and jewelry raised

question of “whether the procedures in place for

22

redeeming seized property” complied with due

process); Decker v. Hillsborough County Attorney’s

Office, 845 F.2d 17, 21 (1st Cir. 1988) (plaintiff’s

complaint that defendants failed “to return his

property to him immediately upon or soon after his

acquittal” raised due process questions that required

examination of state-law procedures to claim property

and contest its destruction).

In summary, petitioners’ claim that CPD

unlawfully deemed their unclaimed property

abandoned and disposed of it is not a Fourth

Amendment claim, but a due process claim. The

court of appeals correctly recognized it as such and

applied well-established case law to reject it.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted,

CELIA MEZA

Corporation Counsel

of the City of Chicago

MYRIAM ZRECZNY KASPER*

Deputy Corporation Counsel

SUZANNE M. LOOSE

Chief Assistant

Corporation Counsel

ELLEN W. MCLAUGHLIN

23

Assistant Corporation Counsel

2 N. LaSalle St., Suite 580

Chicago, IL 60602

(312) 744-3564/742-5147

myriam.kasper@cityofchicago.org

Attorneys for Respondents

*Counsel of Record

March 11, 2022