Petition for Writ of Certiorari — Jevarreo Kelley-Lomax, Petitioner v. City of Chicago, Illinois

No. _______

In the Supreme Court of the United States

_______________________________

JEVARREO KELLEY-LOMAX, PETITIONER,

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 Petitioner

QUESTION PRESENTED

Persons who are arrested surrender their property to

the arresting authority “to insure against claims of lost,

stolen, or vandalized property.” Colorado v. Bertine, 479

U.S. 367, 372 (1987). Most police departments follow the

common law rule, in effect when the Fourteenth Amendment was adopted, that a state official who lawfully

seizes property becomes a “temporary bailee” who is required to safeguard the property.

The City of Chicago ignores the common law rule and

follows the “destroy or sell policy” upheld by the Seventh

Circuit in Conyers v. Chicago, 10 F.4th 704 (7th Cir.

2021), cert. denied, 142 S. Ct. 1669 (2022) and reaffirmed

in this case. This policy results in the sale or destruction

of arrestee property that is not claimed within 30 days of

arrest, even for persons like petitioner who remain in

custody for six months before being acquitted and released.

The circuits are divided on whether the refusal to return lawfully seized property implicates the Fourth

Amendment. The question presented is:

May a municipality, consistent with the Fourth and

Fourteenth Amendments, sell or destroy property

seized for safekeeping from an arrestee, merely because

the arrestee is held in custody as a pre-trial detainee for

more than 30 days?

(i)

PARTIES TO THE PROCEEDINGS

Petitioner is Jevarreo Kelley-Lomax.

Respondent is the City of Chicago.

RELATED PROCEEDINGS

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

Kelley-Lomax v. City of Chicago, 20-cv-4638

(August 19, 2021 (ruling on motion to dismiss)

Kelley-Lomax v. City of Chicago, 20-cv-4638

(October 1, 2021 (ruling on motion to reconsider)

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

Kelley-Lomax v. City of Chicago, 49 F.4th 1124

(7th Cir. 2022)

(ii)

TABLE OF CONTENTS

Page

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

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

Constitutional Provisions Involved ................................ 2

Statement ............................................................................ 2

Reasons for Granting the Petition .................................. 4

I.

The circuits are divided on whether the

Constitution protects an individual’s

interest in personal property that has been

lawfully seized ...................................................... 4

A. The rule followed by the First, Second,

Sixth, Seventh, and Eleventh Circuits .... 5

B. The contrary rule followed by the

Fourth and Ninth Circuits ......................... 7

C. The conflict is ripe for resolution .............. 9

II.

The Framers and the drafters of the

Fourteenth Amendment considered an

official holding property seized under color

of office as a bailee ............................................. 10

III.

Numerous states recognize that a police

department that holds arrestee property is

a “temporary” or “involuntary” bailee ............ 12

IV.

The abandonment theory relied on by the

Seventh Circuit should not deter the Court

from resolving the conflict presented in

this case ............................................................... 13

(iii)

Conclusion ......................................................................... 14

Appendix A – Court of Appeals Opinion

(September 28, 2022) ............................ 1a

Appendix B – District Court Order on motion to

dismiss (August 19, 2021) .................... 5a

Appendix C – District Court Order on motion to

reconsider (October 1, 2021) .............. 10a

Appendix D - Court of Appeals judgment order

(September 28, 2022) .......................... 12a

TABLE OF AUTHORITIES

Cases

Abel v. United States, 362 U.S. 217 (1960) ................... 14

Adams v. Gardiner, 52 Ky. 197

(Ky. App. 1852) ............................................................. 11

Brite Fin. Servs., LLC v. Bobby’s Towing Serv.,

LLC, 461 F. Supp. 3d 549 (E.D. Mich. 2020) ............ 10

Brewster v. Beck, 859 F.3d 1194

(9th Cir. 2017) ................................................................. 8

California v. Carney, 471 U.S. 386 (1985) ...................... 9

Case v. Eslinger, 555 F.3d 1317 (11th

Cir. 2009) ......................................................................... 6

Colorado v. Bertine, 479 U.S. 367 (1987) .................. 4, 14

Conyers v. City of Chicago, 10 F.4th 704 (7th

Cir. 2021) ......................................................................... 3

Crawford v. Newell, 23 Iowa 453 (1867) ....................... 11

(iv)

Denault v. Ahern, 857 F.3d 76

(1st Cir. 2017) ............................................................. 6, 7

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

(6th Cir. 1999) ............................................................. 5, 6

Griffin v. Illinois, 351 U.S. 12 (1956) ............................ 13

Hartleib v. McLane, 44 Pa. 510 (1863) .......................... 11

Heffley v. State, 83 Nev. 100, 423 P.2d 666 (1967) .. 12-13

Illinois v. Lafayette, 462 U.S. 640 (1983) ........................ 4

Int’l News Serv. v. Associated Press, 248

U.S. 215 (1918) .............................................................. 14

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

(9th Cir. 2019) ............................................................. 8, 9

Kendall v. Morse, 43 N.H. 553 (1862) ........................... 11

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

(7th Cir. 2003) ............................................................. 5, 8

Manuel v. Joliet, 580 U.S. 357 (2017) .............................. 8

Minsky v. City of Los Angeles, 11 Cal.3d 113,

520 P.2d 726 (1974) ....................................................... 13

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

Cir. 2004) ......................................................................... 7

Moore v. Westervelt, 27 N.Y. 234 (1863) ....................... 12

Owen v. City of Independence, 445 U.S. 622 (1980) .... 10

Parratt v. Taylor, 451 U.S. 527 (1981) ............................ 6

Pearson v. Callahan, 555 U.S. 223 (2009) .................. 7, 9

(v)

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

305 P.2d 145 (1956) ....................................................... 12

People v Robinson, 36 A.D.2d 375,

320 N.Y.S.2d 665 (1971) .............................................. 13

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

(4th Cir. 2006) ............................................................. 5, 7

Riley v. California, 573 U.S. 373 (2014) ....................... 12

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

(9th Cir. 2018) ................................................................. 8

Saxlehner v. Eisner & Mendelson Co., 179

U.S. 19 (1900) ................................................................ 14

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

232 A.2d 565 (1967) ...................................................... 13

Saucier v. Katz, 533 U.S. 194 (2001) ................................ 7

Saunders v. Baltimore City Police Dept., CV

CCB-19-551, 2020 WL 1505697

(D. Md. Mar. 30, 2020) ................................................. 10

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

363 F.3d 177 (2d Cir. 2004) ........................................... 6

Smith v. New York City Police Dep’t, Prop.

Clerk Div., No. 121CV3239AMDLB, 2022

WL 4648417 (E.D.N.Y. Sept. 30, 2022) ..................... 13

South Dakota v. Opperman, 428 U.S. 364 (1976) .......... 4

Springer v. Albin, 398 F. App’x 427

(10th Cir. 2010) ........................................................... 5, 9

State v. Peck, 449 P.3d 235,

194 Wash.2d 148 (2019) ............................................... 12

(vi)

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

250 S.E.2d 309 (1979) ................................................... 12

State v. Wallen, 185 Neb. 44,

173 N.W.2d 372 (1970) ................................................. 13

Tinker v. Morrill, 39 Vt. 477, 1866 WL 3047

(Vt. 1866) ....................................................................... 11

United States v. Jacobsen, 466 U.S. 109 (1984) ......... 5, 8

United States v. Jones, 565 U.S. 400 (2012) ................. 12

Walker v. Commonwealth, 59 Va. 13 (1867) ................ 11

Statutes and Constitutional Provisions

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

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

U.S. Const. Amend. IV ........... 2, 3, 4, 5, 6, 7, 8, 10, 11, 12

U.S. Const. Amend. V ....................................................... 7

U.S. Const. Amend. XIV ..................... 2, 3, 4, 6, 10, 11, 12

Federal Rules of Civil Procedure, Rule 12(b)(6) ........... 3

California Gov. Code § 26640 ......................................... 13

Other Sources

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

Amendment: Giving Personal Property Due

Protection, 125 YALE L.J. 946 (2016) ........................ 11

Thomas Y. Davies, Recovering the Original

Fourth Amendment, 98 MICH. L. REV. 547,

710 (1999) ...................................................................... 11

(vii)

M. Jackson Jones, Examining Why the Fourth

Amendment Does Not Protect Property

Interests Once the Initial Search and

Seizure Have Been Completed, 45 S.U. L.

REV. 96 (2017) .............................................................. 10

Graham Miller, Note, Right of Return: Lee v.

City of Chicago and Contesting Seizure in

the Property Context, 55 DEPAUL L. REV.

745 (2006) ...................................................................... 10

Laurent Sacharoff, The Fourth Amendment

Inventory as a Check on Digital Searches,

105 IOWA L. REV. 1643 (2020) .................................... 11

(viii)

In the Supreme Court of the United States

_______________________________

JEVARREO KELLEY-LOMAX, PETITIONER,

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

_______________________________

Jevarreo Kelley-Lomax respectfully petitions 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-4a) is reported at 49 F.4th 1124. The opinion of the district court

(App. 5a-9a) and its order denying reconsideration (App.

10a-11a) are not reported.

JURISDICTION

The judgment of the court of appeals (App. 12a) was

entered on September 28, 2022. Rehearing was not

sought. The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

(1)

-2CONSTITUTIONAL PROVISIONS 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 Due Process clause of the Fourteenth Amendment,

Section 1, provides:

[N]or shall any state deprive any person of life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal

protection of the laws.

STATEMENT

1. Petitioner Jevarreo Kelley-Lomax was arrested

by Chicago police officers on April 18, 2019; the officers

inventoried petitioner’s personal property—a cell phone,

charger, and two earrings. (App. 6a.) The officers designated the property as “available for return to owner,”

making it available for pickup by petitioner or his designee for 30 days following arrest. (Id.) A policy of the

City of Chicago requires its police to sell or throw away

all property that is not reclaimed during that 30-day period. (App. 1a.)

2. The municipal policy, which is justified by “rationing available storage [space]” (App. 4a), does not include any exception for arrestees, like petitioner, who

are held in custody for more than 30 days. The effect of

the policy is that any property not retrieved within 30 days

is deemed abandoned and “is sold or thrown away.” (App.

1a.)

-33. Petitioner remained in custody for nearly six

months and was unable to find anyone willing to retrieve

his property. (App. 1a.) Respondent therefore applied its

policy and disposed of petitioner’s property. (App. 1a2a.)

4. Petitioner brought this action under 42 U.S.C.

§ 1983 following his release from custody, complaining

that he had been deprived of rights secured by the

Fourth, Fifth, and Fourteenth Amendments when respondent disposed of his property. 1 Respondent moved

to dismiss under Rule 12(b)(6) of the Federal Rules of

Civil Procedure; the district court granted the motion,

relying on the decision of the Seventh Circuit in Conyers

v. City of Chicago, 10 F.4th 704 (7th Cir. 2021), cert. denied, 142 S. Ct. 1669 (2022). (App. 5a-11a.) The Seventh

Circuit affirmed. (App. 1a-4a.)

5. The Seventh Circuit rejected petitioner’s request

that it revisit its holding in Conyers on the Fourth

Amendment issue, stating “we do not see any deficiency

in that opinion’s reasoning.” (App. 2a.) The court of appeals then turned to petitioner’s substantive due process

claim that had not been at issue in Conyers. (Id.)

6. The Seventh Circuit recognized that the right to

own property is a fundamental right (App. 3a) but upheld

dismissal of the Due Process claim because petitioner

had failed to show “that our historical tradition recognizes a right to have the government serve as unpaid custodian of property for extended periods.” (App. 2a.)

Petitioner also sought to represent a class of those similarly situated pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure. (App. 5a.) The district court did not rule on whether the case

could be maintained as a class action.

1

-4REASONS FOR GRANTING THE PETITION

Chicago’s police officers routinely inventory the personal property (“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). “It is not unheard of

for persons employed in police activities to steal property taken from arrested persons.” Illinois v. Lafayette,

462 U.S. 640, 646 (1983). An inventory seizure thus protects “the owner’s property while it remains in police

custody” and shields “the police against claims or disputes over lost or stolen property.” South Dakota v. Opperman, 428 U.S. 364, 369 (1976).

The question presented in this case is: May a municipality solve its limited storage space problem by requiring its police officers to sell or throw away an arrestee’s

property when the arrestee remains in custody for 30

days and has been unable to secure an agent to retrieve

the property?

The answer is “no” under the view of the Fourth

Amendment applied by two circuits; the answer is “yes”

in five circuits. The answer of “no” is consistent with the

Framer’s view of the “effects” clause of the Fourth

Amendment and the common understanding of bailment

law in 1886 when the Fourteenth Amendment was

adopted. The Court should grant certiorari to resolve the

well-defined conflict and restore the respect for property

rights embodied in the Fourth and Fourteenth Amendments.

I.

The circuits are divided on whether the

Constitution protects an individual’s interest in

personal property that has been lawfully seized

The Tenth Circuit has correctly observed that the

“circuits are split on the Fourth Amendment issue”

-5arising from “the failure to return lawfully seized property.” Springer v. Albin, 398 F. App’x 427, 434 (10th Cir.

2010).

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

Eleventh Circuits follow the rule applied by the Seventh

Circuit in this case that “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, after an initial seizure, the Fourth Amendment continues to protect

against “‘meaningful interference with an individual’s

possessory interests in that property.’” Presley v. City of

Charlottesville, 464 F.3d 480, 482 (4th Cir. 2006), quoting

United States v. Jacobsen, 466 U.S. 109, 113 (1984).

A. The rule followed by the First, Second,

Sixth, Seventh, and Eleventh Circuits

Five circuits follow the rule first applied by the Sixth

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

1999) that after the “act of taking the property is complete, the seizure has ended and the Fourth Amendment

no longer applies.” Id. at 351. The panel majority in Fox

did not, as the dissenting judge pointed out, cite “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). Nor did the panel majority consider the

original intent of the framers of the Fourth or Fourteenth Amendments.

The Seventh Circuit followed a similarly limited exposition in Lee v. City of Chicago, 330 F.3d 456 (7th Cir.

2003), relying on a textual analysis to conclude that the

word “secure” in the Fourth Amendment limited the

-6protections 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.” Id. at 462. The Seventh Circuit did not advert to the intent of the Framers in including the “effects” clause in the Fourth Amendment.

The Second Circuit followed Fox and Lee in Shaul v.

Cherry Valley-Springfield Cent. Sch. Dist., 363 F.3d 177

(2d Cir. 2004), where a teacher suspended from employment complained that the school had failed to return all

of the personal items that he had left behind. The Second

Circuit did not cite any authority to support its conclusion that when “an initial seizure of property was reasonable, defendants’ failure to return the items does not, by

itself, state a separate Fourth Amendment claim of unreasonable seizure.” 2 Id. at 187.

The Eleventh Circuit in Case v. Eslinger, 555 F.3d

1317 (11th Cir. 2009) rejected in a single sentence the

plaintiff’s assertion “that the retention of his seized property violated the Fourth Amendment.” Id. at 1330. The

court explained that its result was compelled by the fact

that there had been probable cause for the initial seizure.

The First Circuit followed Fox, Lee, and Shaul in

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

that when “an initial seizure of property was reasonable,

defendants’ failure to return the items does not, by itself,

state a separate Fourth Amendment claim of

The Second Circuit suggested that a remedy would be available as

a denial of procedural due process under the Fourteenth Amendment. Shaul, 363 F.3d at 187. The Eleventh Circuit made the same

suggestion in Case, 555 F.3d at 1331, but concluded that a due process claim was barred by Parratt v. Taylor, 451 U.S. 527 (1981).

2

-7unreasonable seizure.” 3 Id. at 83. Once again, the court of

appeals did not consider the views of the Framers.

B. The contrary rule followed by the Fourth

and Ninth Circuits

The Fourth Circuit first recognized that retaining

property after a lawful seizure violates the Fourth

Amendment in Moms, Inc. v. Willman, 109 Fed. 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 violated the Fourth

Amendment but concluded that that right had not been

“clearly established when the theft allegedly occurred.” 4

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.

The First Circuit held that the claim sounds “in the Fifth Amendment rather than in the Fourth Amendment” because the Fifth

Amendment, rather than the Fourth, protected personal property.

Denault v. Ahern, 857 F.3d 76, 84 (1st Cir. 2017). The Court did not

acknowledge that the Framers intended their use of “effects” in the

Fourth Amendment to refer to personal property. See infra at 1011.

3

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.

4

-8A 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. 5 The court of appeals relied on Manuel v.

City of Joliet, 580 U.S. 357 (2017), 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

the grant of summary judgment to the motorist because

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.

5

-9the municipality could not justify its continued retention

of the vehicle. Id. at 516-17.

The conflict between the circuits is well-defined and

should be resolved by the Court.

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 it is unlikely

that other circuits will take sides on the conflict presented in this case. This case therefore presents a

“fully percolated conflict.” California v. Carney, 471

U.S. 386, 398 (1985) (Stevens, J., dissenting).

Springer arose from the execution of a search warrant

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

acknowledged the circuit split, 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.6 Id. at 436.

The Ninth Circuit reached the same result in Jessop

v. City of Fresno, 936 F.3d 937 (9th Cir. 2019), a case arising from the theft of more than $200,000 by officers executing a search warrant. Id. 939-40. The court of appeals

described the officers’ actions as “morally reprehensible,” id. at 943, but upheld the grant of qualified immunity because the officers had not violated clearly settled

law. Id. at 941-42.

District court decisions make plain that the lower federal courts will avoid weighing in on the conflict presented in this case because, as authorized by Pearson v.

Callahan, 555 U.S. 223 (2009), they will grant qualified

This is a consequence of the framework the Court adopted in Pearson v. Callahan, 555 U.S. 223 (2009) for resolving claims of qualified

immunity.

6

-10immunity when the law is not clearly established. See,

e.g., Brite Fin. Servs., LLC v. Bobby’s Towing Serv.,

LLC, 461 F. Supp. 3d 549, 557 (E.D. Mich. 2020); Saunders v. Baltimore City Police Dept., CV CCB-19-551,

2020 WL 1505697, at *3 (D. Md. Mar. 30, 2020).

Commentators also acknowledge the circuit split. See

M. Jackson Jones, Examining Why the Fourth Amendment Does Not Protect Property Interests Once the Initial Search and Seizure Have Been Completed, 45 S.U.

L. REV. 96, 98-118 (2017); Graham Miller, Note, Right of

Return: Lee v. City of Chicago and Contesting Seizure in

the Property Context, 55 DEPAUL L. REV. 745, 748-55

(2006).

This case, brought against a municipality because of

its 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.

II.

The Framers and the drafters of the

Fourteenth Amendment considered an

official holding property seized under color

of office as a bailee

This case provides the Court with an opportunity to

restore the “effects” clause of the Fourth Amendment to

the original intent of the Framers, an understanding

shared by the drafters of the Fourteenth Amendment.

The Framers intended the “effects” clause of the

Fourth Amendment to refer to “personal property.” 7 At

“Founding-era debates focused specifically on personal property.”

The Lost “Effects” of the Fourth Amendment: Giving Personal

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

were included in the Fourth Amendment “because of the risk of mishandling or damage generally associated with interferences with

7

-11the time of the framing, “‘effects’ was usually understood

to designate moveable goods or property (but not real

property or premises).” 8 The Framers sought to implement through the “effects” clause the right “to know and

understand what property was taken, and a person is entitled to have the power to get it back.” Laurent Sacharoff, The Fourth Amendment Inventory as a Check

on Digital Searches, 105 IOWA L. REV. 1643, 1671 (2020).

The “power to get it back” is consistent with the view

that by inventorying and storing arrestee property, the

government becomes a bailee “bound to an appropriate

degree of care or diligence in preserving the thing bailed,

because it is the property of another to whom he is bound

to restore it.” Adams v. Gardiner, 52 Ky. 197, 200

(Ky. App. 1852). Thus, a person who holds property

seized through judicial process,

[I]s treated as only the temporary bailee of the property, with the right to use it by the consent of the

debtor, but liable at any time to be called to account if

guilty of converting the property by any abuse, or

wrongful use, or refusal to deliver on demand.”

Tinker v. Morrill, 39 Vt. 477, 479, 1866 WL 3047, at *2

(Vt. 1866).

That a “temporary bailee” has the duty “to take care

of and preserve the property,” Crawford v. Newell, 23

Iowa 453, 455 (1867), was well settled when the Fourteenth Amendment was enacted. See, e.g., Kendall v.

Morse, 43 N.H. 553, 555 (1862); Hartleib v. McLane, 44

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

could be incurred by their inspection.” Id. at 987.

Thomas Y. Davies, Recovering the Original Fourth Amendment,

98 MICH. L. REV. 547, 710 (1999).

8

-12Pa. 510, 514 (1863); Moore v. Westervelt, 27 N.Y. 234, 239

(1863); Walker v. Commonwealth, 59 Va. 13, 43 (1867).

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). This protection extended to property lawfully seized that the government was temporarily holding.

“[G]uidance from the founding era,” Riley v. California, 573 U.S. 373, 385 (2014), shows that the Court should

resolve the conflict between the circuits and restore the

Fourth and Fourteenth Amendments to their intended

meaning to protect personal property.

III.

Numerous states recognize that a police

department that holds arrestee property is a

“temporary” or “involuntary” bailee

The concept of “temporary” or “involuntary” bailee

has been frequently applied to property seized during inventory searches. For example, the court in People v.

Ortiz, 147 Cal.App.2d 248, 249, 305 P.2d 145, 147 (1956),

acknowledged the inventory search procedure and described the law enforcement agency holding the property as “the temporary storage bailee.” 147 Cal.App.3d

at 349, 305 P.2d at 147.

North Carolina similarly recognizes as an “involuntary bailee” the police officer who seizes property during

an inventory search. State v. Phifer, 39 N.C. App. 278,

286, 250 S.E.2d 309, 314 (1979).

The Washington Supreme Court recently acknowledged the status of “temporary storage bailee” for the

law enforcement agency that seizes property during an

inventory search. State v. Peck, 449 P.3d 235, 239, 194

Wash.2d 148, 155–56 (2019).

-13Other cases recognizing that a law enforcement officer who seizes and inventory property becomes a temporary bailee include 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); and People v

Robinson, 36 A.D.2d 375, 378, 320 N.Y.S.2d 665, 669

(1971).

Respondent City of Chicago stands alone in its “sell or

destroy” policy. For example, the New York City Police

Department will retain arrestee property for at least

“120 days after the termination of criminal proceedings.”

Smith v. New York City Police Dep’t, Prop. Clerk Div.,

No. 121CV3239AMDLB, 2022 WL 4648417, at *6

(E.D.N.Y. Sept. 30, 2022). The same policy of holding arrestee property until the termination of criminal proceedings is followed by all municipal police departments

in California. California Gov. Code § 26640; Minsky v.

City of Los Angeles, 11 Cal.3d 113, 520 P.2d 726, 731 n.5

(1974).

IV.

The abandonment theory relied on by the

Seventh Circuit should not deter the Court

from resolving the conflict presented in this

case

The Seventh Circuit held in this case that respondent

was free to sell or throw away petitioner’s personal property because he had not retrieved it while being held as

a pretrial detainee. (App. 3a.) As Justice Frankfurter

urged in Griffin v. Illinois, 351 U.S. 12 (1956), quoting

the famous aphorism of Anatole France, 9 the Court

“‘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).

9

-14should refuse to “sanction such a ruthless consequence,

inevitably resulting from a money hurdle erected by a

State.” Id. at 23 (Frankfurter, J., concurring).

“Abandonment is a question of intent.” Int’l News

Serv. v. Associated Press, 248 U.S. 215, 240 (1918). There

must be “an actual intent to abandon.” Saxlehner v. Eisner & Mendelson Co., 179 U.S. 19, 31 (1900). Petitioner

did not “intend” to be held as pretrial detainees for more

than 30 days, and he did not intend to abandon his personal property. Petitioner’s property, held by respondent “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), did not become “bona

vacantia,” Abel v. United States, 362 U.S. 217, 241 (1960),

simply because petitioner remained in custody as a pretrial detainee for more than 30 days. The Seventh Circuit’s heartless abandonment theory should not deter the

Court from resolving the conflict presented in this case.

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, 2022

Attorneys for Petitioner