Appendix — Towers v. City of Chicago

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APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

DATED AND DECIDED APRIL 16, 1999

Sandra TOWERS, on her own behalf and on behalf of

others similarly situated, and Robert Sturdivant,

Plaintiffs-Appellants,

v.

CITY OF CHICAGO, Defendant-Appellee.

No. 97-3775.

United States Court of Appeals,

Seventh Circuit.

Argued Oct. 28, 1998.

Decided April 16, 1999.

- * *

Before COFFEY, RIPPLE and EVANS, Circuit Judges.

RIPPLE, Circuit Judge.

The plaintiffs brought this action against the City of

Chicago (“the City”) to challenge city ordinances that

impose a $500 fine upon the owner of a vehicle in which

illegal drugs or firearms are found. The plaintiffs now seek

review of the district court’s decision to grant the

defendant’s Rule 12(b)(6) motion to dismiss and to deny

the plaintiffs’ motions for class certification and preliminary

injunction. For the reasons set forth in the following opinion,

we affirm the judgment of the district court.

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Appendix A

I

BACKGROUND

A. The Ordinances

The Municipal Code of Chicago provides that the owner

of any vehicle containing illegal drugs or unregistered

firearms may be assessed an administrative penalty of $500.

See Chicago Municipal Code §§ 7-24-225 (drugs), 8-20-

015 (firearms).' The relevant ordinances recognize only

three defenses to the imposition of the penalty: 1) the vehicle

was stolen at the time the illegal item was found in the

vehicle, and the theft was reported within 24 hours after

the theft was discovered or reasonably should have been

discovered; 2) the vehicle was Operating as a common

carrier and the violation occurred without the knowledge

of the person in control of the vehicle; and 3) the owner

proves that the item found is not unlawful.

When the illegal item is found in a vehicle, a police

officer must seize the car and have it towed to an

impoundment facility to secure payment of the

administrative penalty. When the vehicle is towed, the

officer must provide notice to anyone identifying himself

as the owner, or anyone else in control of the vehicle, that

the owner can request a preliminary hearing. If requested,

the preliminary hearing must be held within 24 hours of

1. The plaintiffs’ class action claim also challenges three other

ordinances that impose on vehicle owners a $500 penalty for other

particular misuses of a vehicle. See Chicago Municipal Code

§§ 8-8-060 (prostitution), 8-16-020 (children on streets at night),

11-4-1115 (sound devices).

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the seizure. All interested persons have an Opportunity to

be heard at the hearing, and the hearing officer determines

whether there is probable cause to believe that the illegal

item was found in the vehicle and that none of the three

defenses applies.

If the hearing officer concludes that probable cause does

not exist, then the City must return the vehicle to the owner

without charge. If, however, the officer determines that

probable cause does exist, or if the owner does not request

a preliminary hearing, then the vehicle must remain

impounded pending a final hearing, unless the owner posts

a cash bond of $500 plus towing and storage costs. Notice

of the time, date, and place of the final hearing must be

sent to the owner by certified mail, return receipt requested,

within 10 days after seizure, and the final hearing must take

place within 30 days after the seizure.

At the final hearing, the hearing officer must determine

by a preponderance of the evidence whether the illegal item

was found in the vehicle and, if so, whether any of the three

defenses applies. If the hearing officer finds that no violation

occurred, then the City must return the vehicle (or the cash

bond) to the owner. If the hearing officer determines that a

violation occurred, then he must find the owner liable for

the $500 administrative penalty plus applicable towing and

storage charges.

B. Facts Relating to Plaintiff Towers

On January 27, 1996, Chicago police officers stopped

Ray Chambers while he was driving Sandra Towers’ car.

The police found a controlled substance in the vehicle.

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Pursuant to § 7-24-255 of the Chicago Municipal Code, the

police seized and impounded Ms. Towers’ car. Ms. Towers

had not given Chambers express permission to use her car,

let alone to use it to transport a controlled substance, and

she did not know that a controlled substance was in her car.

Ms. Towers was not present when the car was seized.

Ms. Towers was never informed by the City of her right

to request a preliminary hearing within 24 hours of the

seizure and thus did not request such a hearing. Between

January 28 and F ebruary 6, Ms. Towers attempted to retrieve

her car by posting the $500 bond and paying the towing

and storage fees, but she was unsuccessful because City

employees had not completed the necessary paperwork. Ms.

Towers was first notified by mail on February 2, 1996, that

she was entitled to a final hearing. On February 6, 1996,

Ms. Towers obtained her car by paying the $500 bond and

$225 in accumulated towing and storage fees. At the final

hearing, Ms. Towers was not permitted to assert an innocent-

owner defense because the ordinance does not recognize

such a defense. On March 8, 1996, a final administrative

order imposing a $500 civil penalty was entered against

Ms. Towers.

C. Facts Relating to Plaintiff Sturdivant

On an unspecified date in September 1996, Chicago

police officers witnessed a Person in possession of an

unregistered handgun run and jump into Robert Sturdivant’s

car. Pursuant to § 8-20-015 of the Chicago Municipal Code,

the police seized and impounded Mr. Sturdivant’s car. Mr.

Sturdivant was not present at the time of the seizure and

did not know that a gun was in his car. He was never notified

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of his right to request a preliminary hearing and thus did

not request one.

On October 1, 1996, Mr. Sturdivant received notice of

his right to a final hearing. At the hearing, Mr. Sturdivant

was unable to assert an innocent-owner defense because

the ordinance recognizes no such defense. Consequently,

Mr. Sturdivant did not prevail at the final hearing and was

found liable for the $500 administrative penalty. Mr.

Sturdivant was without his vehicle for more than fifteen

days before he was able to pay to have the car released to

him. The interrupted use of his vehicle affected his ability

to make a living and his access to the necessities and

amenities of life.

D. Earlier Proceedings in the State Court and in the

District Court

Plaintiff Towers filed this action against the City of

Chicago in state court, and the City removed it to federal

district court. On January 27, 1997, Ms. Towers filed a

second amended complaint, including two additional

plaintiffs (Mr. Sturdivant and Kevin Amos) and purporting

to represent a class of similarly situated people. The

plaintiffs brought federal claims under § 1983 (on their own

behalf and on behalf of a putative class of car owners). They

alleged that the administrative penalty violated substantive

due process and the Excessive Fines Clause; that the

procedures specified in the ordinances violated procedural

due process; and that the City seized their cars in violation

of the Fourth Amendment. Ms. Towers also contended that

the City had deprived her of procedural due process by

delaying the return of her vehicle after she tendered the

required cash bond and fees.

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On February 7, 1997, the parties agreed to proceed

before a magistrate judge. On September 30, 1997, the

magistrate judge, in a comprehensive and thoughtful

opinion, granted the City’s Rule 12(b)(6) motion to dismiss

and denied the plaintiffs’ motions for class certification and

for preliminary injunction. This appeal followed.?

E. Holding of the District Court

The court dismissed all of the plaintiffs’ claims for

failure to state a claim upon which relief can be granted.

The district court first dismissed the procedural due

process claim; it held that, under the balancing test of

Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 47

L.Ed.2d 18 (1976), the ordinances provide adequate

procedural protection for the owner. The district court

determined that, along with other available State law

remedies, the post-deprivation procedures under the

ordinances satisfy the requirements of procedural due

process. Specifically, with respect to the plaintiffs’ claim

that they did not receive notice of the preliminary hearing,

the court held that the police officers’ notice to the person

in control of the vehicle was adequate.

The district court also dismissed the plaintiffs’

substantive due process claims. It held that the ordinances

impose constitutionally permissible civil fines. F inding the

City’s fines analogous to civil in rem forfeitures, the district

court relied on Bennis v. Michigan, 516 U.S. 442, 116 S.Ct.

994, 134 L.Ed.2d 68 (1996), in which the Supreme Court

2. Only Ms. Towers and Mr. Sturdivant appeal; Mr. Amos’

claims were dismissed pursuant to a settlement agreement.

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upheld the constitutionality of a Michigan in rem forfeiture

statute that did not recognize an innocent-owner defense.?

The district court also dismissed the plaintiffs’

Excessive Fines Clause claims. The court determined that

the fines imposed were analogous to fines levied in civil in

rem forfeiture proceedings and were not excessive under

the Eighth Amendment. The district court rejected the

plaintiffs’ argument that they were completely without

culpability and concluded that, because they did not report

the cars stolen, the plaintiffs must have given at least some

degree of consent to the use of their cars, either before or

after the fact. Accordingly, the district court reasoned, the

fines were not excessive in light of their purpose of inducing

owners to exercise greater care in entrusting their property

to others.

Because the plaintiffs’ claims failed to survive the Rule

12(b)(6) motion,‘ the district court also held that their

3. In the course of its discussion of this issue, the district court

rejected the plaintiffs’ argument that the City’s ordinances are

criminal in nature and are thus subject to criminal due process

protections. Applying the analysis articulated by the Supreme Court

for determining whether a penalty is civil or criminal, see United

States v. Ward, 448 U.S. 242, 100 S.Ct. 2636, 65 L.Ed.2d 742

(1980), the district court concluded that the fines imposed under

the City’s ordinances were civil and thus did not implicate criminal

due process protections. The plaintiffs do not appeal the district

court’s determination in this regard.

4. The district court also dismissed the plaintiffs’ claim that

the impoundment of their cars constituted an unreasonable seizure

under the Fourth Amendment. In the district court’s view, the

plaintiffs did not demonstrate that the ordinances, or the police

officers’ execution of the ordinances, were unreasonable.

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proposed class action based on those claims must also fail.

The district court further held that, even if the plaintiffs’

individual claims had survived dismissal, the requirements

for class certification had not been met because there was

inadequate evidence of numerosity. The district court did

not reach the issue whether the plaintiffs had met the other

three threshold requirements for class certification.

Finally, the district court denied the plaintiffs’ motion

for a preliminary injunction. It held that the plaintiffs lacked

standing as individuals to request such relief because they

could not demonstrate, as required by City of Los Angeles

v. Lyons, 461 U.S. 95, 105, 103 S.Ct. 1660, 75 L.Ed.2d

675 (1983), impending injury similar to the one already

allegedly suffered. Even if the class had been certified,

continued the court, the plaintiffs met none of the three

threshold requirements for a preliminary injunction: some

likelihood of success on the merits, no adequate remedy at

law, and irreparable harm.

IT

DISCUSSION

A. Excessive Fines

The Eighth Amendment provides: “Excessive bail shall

not be required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted.” U.S. Const. amend. VIII.

The parties have not disputed that the Eighth Amendment’s

Excessive Fines Clause applies to the civil penalties at issue

in this case. Indeed, the Supreme Court has interpreted the

Excessive Fines Clause to apply to civil fines. See Hudson

v. United States, 522 U.S. 93, 118 S.Ct. 488, 495, 139

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L.Ed.2d 450 (1997) (stating that “[t]he Eighth Amendment

protects against excessive civil fines, including

forfeitures”); Austin v. United States, 509 U.S. 602, 609,

113 S.Ct. 2801, 125 L.Ed.2d 488 (1993) (concluding that

the civil forfeiture of property used in a drug crime

constituted punishment and was therefore subject to the

Excessive Fines Clause). In Austin, the Supreme Court

Stated that the Excessive Fines Clause “limits the

government’s power to extract payments, whether in cash

or in kind, ‘as punishment for some offense.’ ” Id. at 609-

10, 113 S.Ct. 2801 (quoting Browning-Ferris Indus. v. Kelco

Disposal, Inc., 492 U.S. 257, 265, 109 S.Ct. 2909, 106

L.Ed.2d 219 (1989)). The Court then explained that civil

Sanctions can constitute punishment, and therefore are

subject to the limitations of the Excessive Fines Clause, if

they serve, at least in part, retributive or deterrent purposes.

See id. at 610, 113 S.Ct. 2801. The Court ultimately

concluded that the civil forfeiture under 21 U.S.C. § 881(a)

of a mobile home and an autobody shop that were used in a

drug crime constituted a “payment to a sovereign as

punishment for some offense” and was thus subject to the

limitations of the Excessive Fines Clause. Id. at 622, 113

S.Ct. 2801.

The fines imposed by the City under the ordinances at

issue here are not solely remedial. In fact, they appear to

serve little or no remedial purpose; they do not compensate

the City for any loss sustained as a result of the violations.

Rather, it is clear that the fines, at least in part, serve the

punitive purpose of deterring owners from allowing their

vehicles to be used for prohibited purposes. At oral

argument, the City emphasized that the ordinances were

enacted in an effort to curb illegal drug and firearm activity

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by supplementing the criminal laws with a civil deterrent

that does not require the government to meet the high burden

of proof required for a criminal conviction. Because the

fines, at least in part, serve this deterrent purpose, they

constitute payment “as punishment for some offense.” Id.

at 610, 113 S.Ct. 2801. Therefore, we must determine

whether they violate the Excessive Fines Clause.

The Supreme Court of the United States has adopted a

“gross disproportionality” test to determine whether a fine

is “excessive” for purposes of the Excessive Fines Clause.

See United States v. Bajakajian, 524 U.S. 321, 118 S.Ct.

2028, 2036, 141 L.Ed.2d 314 (1998). The Court explained

that “[t]he amount of the forfeiture must bear some

relationship to the gravity of the offense that it is designed

to punish” and held that “a punitive forfeiture violates the

Excessive Fines Clause if it is grossly disproportional to

the gravity of a defendant’s offense.” Id. In Bajakajian, the

defendant pleaded guilty to failing to report that he was

transporting more than $10,000 in currency out of the

country. The district court found the entire amount of the

currency — $357,144 — subject to forfeiture under 18

U.S.C. § 982(a)(1). In applying the gross disproportionality

standard to the facts of Bajakajian’s case, the Supreme Court

considered several factors: that the defendant was guilty of

only a reporting offense, that the violation was unrelated to

any other illegal activities (such as drug dealing, money

laundering, or tax evasion), that the maximum criminal

sentence would have been six months and the maximum

fine $5,000, and that the offense caused only minimal harm.

Based on these considerations, the Supreme Court

determined that the forfeiture of $357,144 was grossly

disproportional to the gravity of Bajakajian’s offense. See

id. at 2038-39.

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The plaintiffs submit that the $500 civil penalty

imposed on them violates the Excessive Fines Clause

because it bears no relationship to their culpability as

innocent owners. They contend that, because they did not

know about the illegal items that were found in their

vehicles, they are innocent of any wrongdoing and,

therefore, the fines imposed are excessive and grossly

disproportional to the offense. In evaluating this contention,

we note at the outset that the proportionality determination

must be made based on the facts of a particular case and

that our review of that determination is de novo. See id. at

2037-38 & n. 10. We therefore turn to the factors considered

by the Supreme Court in Bajakajian to determine whether

the fine imposed by the City violates the Excessive Fines

Clause.

We begin by examining the gravity of the offense

committed by the plaintiffs. On the record before us, each

plaintiff has unwittingly allowed his vehicle to be used as a

receptacle for another’s illegal item. There is no indication

that the plaintiffs’ offense was related to any other illegal

activities on their part. Although many of the people who

are fined under the City’s ordinances will also be involved

in other illegal conduct connected to the drugs or firearms

found in their vehicles, there is no indication in the record

that the plaintiffs in this case were involved in any illegal

activity related to the items found in their vehicles.

Unwittingly lending one’s vehicle to an individual who then

independently uses it to carry an illegal item cannot be

characterized, standing alone, as a transgression exhibiting

significant antisocial behavior.

We cannot accept, however, the notion that the plaintiffs

must be considered completely lacking in culpability. The

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district court concluded, reasonably, that, because the

plaintiffs did not report their cars stolen, they must have

given some degree of consent to the use of their cars by

others, either before or after that use. The district court

further concluded, persuasively, that, “[w]hen an owner

consents to release control of his or her vehicle to another

person, expressly or otherwise, the owner also accepts the

risks inherent to that loss of control.” R.65 at 32. The City

certainly has a right to sanction a vehicle owner who does

not ensure that others with access to the vehicle do not place

illegal items in it. See Bennis v. Michigan, 516 U.S. 442,

447-48, 116 S.Ct. 994, 134 L.Ed.2d 68 (1996) (discussing

a historical line of cases holding owners responsible for

the misuse of their property by others). Therefore, although

the gravity of the plaintiffs’ offense is not high compared

to that of persons who themselves place illegal items in

their vehicles, the plaintiffs may still be held responsible

for allowing their vehicles to be misused.°

The harm caused by the plaintiffs’ acts, although not

readily quantifiable, is certainly real and a legitimate subject

of the City’s concern. By facilitating illegal activity

5. Other available penalties for the same offense can provide

relevant evidence of the gravity of the offense. See Bajakajian,

118 S.Ct. at 2038 n. 14. In this case, however, the parties have not

brought to our attention any other applicable penalties for merely

being the owner of a car in which illegal items are found. There

are, of course, federal and state statutes allowing forfeiture of any

vehicles used to facilitate the transportation, sale, receipt,

possession, or concealment of controlled substances. See, e.g., 21

U.S.C. § 881; Illinois Controlled Substances Act, 720 ILCS 570/

505. The application of those statutes to the plaintiffs has not been

placed in issue.

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involving drugs and firearms, the plaintiffs have

contributed, however unwittingly, to the spread of drugs

and the use of firearms, two major concerns of those

responsible for the safety and health of the people of any

municipality and a particular concern to a city the size of

Chicago. The City is on solid ground both in recognizing

that such activity is a contributing factor to the problems it

faces and in creating an additional layer of deterrence

against such illegal activities to reduce the supportive effect

that such activity lends to the drug and firearm problem.

Finally, we compare the amount of the fines to the

gravity of the plaintiffs’ offense. We must conclude that

the fine is not so disproportionate to the gravity of the

conduct as to offend the strictures of the Excessive Fines

Clause. Five hundred dollars is not a trifling sum. But the

City, in fixing the amount, was entitled to take into

consideration that the ordinances must perform a deterrent

function — to induce vehicle owners to ask borrowers hard

questions about the uses to which the vehicle would be put

or to refrain from lending the vehicle whenever the owner

has a misgiving about the items that might find a temporary

home in that vehicle. The $500 fine imposed in this case is

large enough to function as a deterrent, but it is not so large

as to be grossly out of proportion to the activity that the

City is seeking to deter. We do not find the $500 fine

imposed in this case to be constitutionally excessive.

B. Substantive Due Process

We turn now to the plaintiffs’ substantive due process

claim. The plaintiffs submit that the City’s ordinances are

unconstitutional because those provisions do not recognize

an innocent-owner defense. They further contend that the

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district court’s reliance on Bennis v. Michigan, 516 U.S.

442, 116 S.Ct. 994, 134 L.Ed.2d 68 ( 1996), to uphold the

ordinances was inappropriate for two reasons: first, Bennis

involved in rem forfeitures whereas this case involves in

personam fines, and second, the statute in Bennis provided

the courts with equitable discretion to protect innocent

owners whereas the ordinances in this case do not.

In Bennis, police had found the plaintiff's husband

engaging in an illegal sexual act in the family car. In the

ensuing state civil forfeiture action against the car, the wife’s

lack of knowledge that her husband would use the Car in

violation of state law was not a defense to forfeiture of her

share of the jointly owned vehicle. See id. at 444-45, 116

S.Ct. 994. The Supreme Court of the United States held

that the forfeiture did not violate the Due Process Clause.

It stated that “‘a long and unbroken line of cases holds that

an Owner’s interest in property may be forfeited by reason

of the use to which the property is put even though the owner

did not know that it was to be put to such use.” Id. at 446-

50, 116 S.Ct. 994 (discussing The Palmyra, 12 Wheat. 1,

25 US. 1, 6 L.Ed. 531 (1827); Harmony v. United States,

43 U.S. 210, 2 How. 210, 11 L.Ed. 239 (1844); Dobbins’s

Distillery v. United States, 96 U.S. 395, 24 L.Ed. 637

(1877); Van Oster v. Kansas, 272 U.S. 465, 47 S.Ct. 133,

71 L.Ed. 354 (1926); J.W. Goldsmith, Jr.-Grant Co. v.

United States, 254 U.S. 505, 41 S.Ct. 189, 65 L.Ed. 376

(1921); and Calero-Toledo v. Pearson Yacht Leasing Co.,

416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974)).

In this case, the plaintiffs’ first contention is that the

historical pedigree enjoyed by civil in rem forfeiture statutes

that do not recognize an innocent-owner defense simply

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does not apply to this case because the City’s ordinances

impose in personam fines, not in rem forfeitures. Although

the Supreme Court has distinguished between in rem civil

forfeiture proceedings and in personam civil fine

proceedings for purposes of the Double Jeopardy Clause,

see United States v. Ursery, 518 U.S. 267, 116 S.Ct. 2135,

2142, 135 L.Ed.2d 549 (1996), we cannot accept the

suggestion that this distinction affects the substantive due

process analysis in this case. Rather, we believe that the

situation before us today is controlled by the Court’s

rationale in Bennis.

In Bennis, the Court found no substantive due process

bar to subjecting a vehicle owner to civil forfeitures, even

though the owner did not know that the vehicle would be

used for criminal activity by the joint owner of the vehicle.

In this context, we agree with the City that any distinction

between in rem forfeitures (which proceed against the

offending property) and in personam fines (which proceed

against the owner) is one of form, but not substance. Both

proceedings result in an economic penalty to the owner

because his property was used improperly; both serve the

same governmental purpose of deterring unlawful conduct.

There is only one functional difference between an in rem

forfeiture proceeding and the in personam fines at issue in

this case: The in rem forfeiture proceeding results in varying

economic consequences from defendant to defendant, based

on the value of the property; the in personam fine results in

a fixed economic penalty.

indeed, this single functional distinction is an important

consideration in evaluating the plaintiffs’ contention that,

even if Bennis does apply, the City’s ordinances are infirm

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because, unlike the statute upheld in Bennis, they contain

no provision for the exercise of equitable discretion by the

hearing officers to mitigate the loss of innocent owners.

This equitable discretion, they contend, was key to the

Supreme Court’s decision to uphold the Michigan statute

in Bennis and particularly key to Justice Ginsburg’s

concurring vote. The absence of equitable discretion in the

ordinances in this case, the plaintiffs submit, distinguishes

this case from Bennis and requires invalidation of the

ordinances on substantive due process grounds.

In Bennis, the Court did mention that the trial court’s

remedial discretion weakened the argument for a due

process violation. See Bennis, 516 U.S. at 453, 116 S.Ct.

994. Moreover, in her concurring opinion, Justice Ginsburg

specifically noted the availability of equitable discretion

and commented that it was important to prevent “exorbitant

applications of the statute.” Id. at 457, 116 S.Ct. 994

(Ginsburg, J., concurring). We understand the import of

these remarks to be that, in the context of the Michigan

forfeiture statute, this feature was important because,

without such a safety valve, that statute could exact from

the innocent owner a forfeiture of property of exorbitantly

high value in proportion to the owner’s responsibility.

In contrast with the forfeiture statute in Bennis, the

ordinances at issue in this case impose a fixed fine of $500;

this amount does not vary fortuitously with the value of the

vehicle involved. Discretion to mitigate an innocent owner’s

forfeiture is less important when, as in this case, the statute

or ordinance imposes a fixed fine rather than forfeiture of

an entire item regardless of its value, because a fixed fine

removes the potential for drastically, or exorbitantly, harsh

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penalties on an innocent owner. As we have already held in

considering the plaintiffs’ excessive fines argument, the

$500 amount does not inappropriately reflect the

responsibility of the absentee owner for the use of the

vehicle. Therefore, these ordinances are not subject to the

danger of “exorbitant applications.”

We also note a very important difference between this

case and the situation before the Supreme Court in Bennis.

In Bennis, the vehicle was, at the time of the underlying

offense at issue in that case, in the hands of an individual

who shared full ownership rights with his wife. In that case,

there truly was an innocent “co-owner.” In this case, by

contrast, there is no innocent “co-owner.” The plaintiffs had

the sole authority to decide to whom their vehicles would

be lent and to set the restrictions and checks that were

appropriate to ensure that the vehicle would not be used to

support illegal conduct.

We do not believe that the substantive component of

federal due process prevents a state from imposing the civil

penalty of $500 on the owner of a vehicle when the owner

allows the vehicle to be used by another _for illegal activity.

C. Procedural Due Process

The Chicago ordinance affords the vehicle owner a

preliminary hearing within 24 hours. The plaintiffs submit

that the procedural component of federal due process is

violated because the ordinance as written fails to give the

owner adequate notice of this preliminary hearing. A timely

notice of the right to contest the loss of a property interest

is, they contend, an essential part of procedural due process.

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The parties appear to agree that the use of one’s

automobile, even for a short period of time, is a property

right protected by the Due Process Clause. See Sutton v.

City of Milwaukee, 672 F.2d 644, 645 (7th Cir.1982). “The

purpose of a preliminary hearing is for the hearing officer

to decide whether ‘there is probable cause to believe’ both

that the illegal items were found in the vehicle and that

none of the three recognized defenses applies.” Appellee’s

Br. at 7 (quoting Municipal Code of Chicago §§ 7-24-

225(c), 8-20-015(c)). If the hearing officer concludes after

the preliminary hearing that probable cause does not exist,

the City must return the vehicle to the owner without charge.

If the hearing officer determines that probable cause does

exist, the vehicle must remain impounded pending a final

hearing unless the owner posts a cash bond of $500 plus

the towing and storage charges. An owner who does not

request a preliminary hearing may obtain his vehicle by

posting a bond.

The basic criteria for determining the adequacy of notice

under the Due Process Clause are, as the parties agree, found

in the seminal case of Mullane v. Central Hanover Bank &

Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950).

The Supreme Court, through the pen of Justice Jackson,

required that the notice be “reasonably calculated, under

all the circumstances, to apprise interested parties of the

pendency of the action and afford them an opportunity to

present their objections.” Id. at 314, 70 S.Ct. 652. Notably,

the Court emphasized that, when notice is due to an

individual, the “means employed must be such as one

desirous of actually informing the absentee might

reasonably adopt to accomplish it. The reasonableness and

hence the constitutional validity of any chosen method may

nek! Rise. miei «

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be defended on the ground that it is in itself reasonably

certain to inform those affected, or, where conditions do

not reasonably permit such notice, that the form chosen is

not substantially less likely to bring home notice than other

of the feasible and customary substitutes.” Id. at 315, 70

S.Ct. 652 (citations omitted). Our own Chief Judge, writing

for this court, has noted that, when it comes to notice, due

process requires “reasonable efforts at notice.” Schluga v.

City of Milwaukee, 101 F.3d 60, 62 (7th Cir.1996). Using

reasonable efforts does not, of course, require that

authorities use the best possible method of notification. See

Mullane, 339 U.S. at 314, 70 S.Ct. 652; Schluga, 101 F.3d

at 62.

In Mullane, the Court noted that “[i]t is part of the

common prudence for all those who have an interest in (a

thing), to guard that interest by persons who are in a situation

to protect it.” 339 U.S. at 316, 70 S.Ct. 652 (quoting The

Mary, 9 Cranch 126, 144, 13 U.S. 126, 3 L.Ed. 678 (1815))

(internal quotation marks omitted). Therefore, under most

circumstances, notice to the person to whom the article has

been entrusted constitutes adequate notice because that

person has a duty to let the owner know that the article “is

being jeopardized.” Id. (citing Ballard v. Hunter, 204 U.S.

241, 27 S.Ct. 261, 51 L.Ed. 461 (1907)). There seems to be

little question, however, that authorities are expected to use

the information readily available to them in determining

whether to rely on a particular method of notification. See

Robinson v. Hanrahan, 409 U.S. 38, 39, 93 S.Ct. 30, 34

L.Ed.2d 47 (1972); see also Mennonite Bd. of Missions v.

Adams, 462 U.S. 791, 798 n. 4, 103 S.Ct. 2706, 77 L.Ed.2d

180 (1983). Thus, they are under a duty to use the

information in their possession to determine whether the

20a

Appendix A

notice is reasonably calculated to reach the party who has

the right to the notification. See Schluga, 101 F.3d at 63

(due process violation would result from failure to notify

the real owner of the impending sale of his vehicle when

the government knows who the real owner is, knows the

record owner will not notify the real owner, and could notify

the real owner by some inexpensive and efficacious means);

see also Torres v. $36,256.80 U.S. Currency, 25 F.3d 1154,

1161 (2d Cir.1994); McKee v. Heggy, 703 F.2d 479, 481-

82 (10th Cir.1983).

In this case, the person in possession of the vehicle,

having been found by the police to be in possession of

contraband drugs or of an unregistered firearm, may well

be taken into custody or may, at that point, have an interest

in not informing the owner of the vehicle of the

circumstances surrounding the vehicle’s impoundment. Cf.

Mennonite Bd. of Missions, 462 U.S. at 799, 103 S.Ct. 2706

(“Notice to the property owner, who is not in privity with

his creditor and who has failed to take steps necessary to

preserve his own property interest, also cannot be expected

to lead to actual notice to the mortgagee.”). The City ought

not be burdened, under all circumstances, by the driver’s

breach of duty to the owner. See Nelson v. City of New

York, 352 U.S. 103, 108, 77 S.Ct. 195, 1 L.Ed.2d 171

(1956). However, to the extent that the authorities have

altered significantly, by their arrest of the driver, the

possibility of the owner’s receiving prompt notice, the City

might well have an obligation, depending on the

“practicalities and peculiarities” of the situation, to utilize

6. Mullane v. Central Hanover Bank & Trust Co., 339 U.S.

306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950).

Ss eben ira ae Ve

2la

Appendix A

other sources of information readily available to it to

determine the identity of the owner and to give that

individual notification of the preliminary hearing. See

Williams v. United States Drug Enforcement Admin., 51

F.3d 732, 735 (7th Cir.1995).

The district court decided this matter on the pleadings

and we therefore have a very meager record upon which to

determine whether the procedures set forth in the ordinances

provide a constitutionally adequate method of notification.

We have sufficient misgivings about the comprehensiveness

of the notice provisions in the ordinances to rest our decision

on an alternate ground. We need not remand this case for

additional proceedings on this point because the plaintiffs

before us never alleged either that the officers lacked

probable cause to believe the illegal objects were within

the vehicles or that the plaintiffs could meet one of the

exceptions to liability enumerated in the ordinances. Absent

these allegations, there was nothing to contest at a

preliminary hearing and therefore no deprivation of due

process in its absence. See Gilbert v. Homar, 520 U.S. 924,

117 S.Ct. 1807, 1813-14, 138 L.Ed.2d 120 (1997); Northen

v. City of Chicago, 126 F.3d 1024, 1026 (7th Cir.1997),

cert.denied, U.S. _, 118 S.Ct. 1306, 140 L.Ed.2d 471

(1998); see also Codd v. Velger, 429 U.S. 624, 627-29, 97

S.Ct. 882, 51 L.Ed.2d 92 (1977).’

7. In the course of their procedural due process arguments,

the plaintiffs also submit that the City has violated their right under

the Fourth Amendment to be free of unreasonable seizures. Counts

VIII and IX of the complaint appear to allege that the City’s seizures

of the plaintiffs’ vehicles were per se unreasonable because the

(Cont’d)

22a

Appendix A

(Cont'd) 7

seizures were carried out pursuant to municipal ordinances that

themselves are violative of the plaintiffs’ constitutional rights. On

appeal, the plaintiffs’ Fourth Amendment argument is that the nine-

day delay between Ms. Towers’ first attempt to retrieve her vehicle

by paying the applicable fees and her actual retrieval of the vehicle

rendered the seizure unreasonable.

Neither version of the plaintiffs’ argument has merit. First,

the plaintiffs have not alleged that the police officers lacked

probable cause to seize the vehicles initially; rather, they contend

that the unconstitutionality of the ordinances renders the seizures

unreasonable. We agree with the district court that the plaintiffs’

failure to state a claim that the ordinances are unconstitutional

dooms their argument that the seizures were unreasonable because

they were carried out pursuant to unreasonable ordinances.

The plaintiffs’ second argument is precluded by Monell v.

Department of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018,

56 L.Ed.2d 611 (1978), which held that “a municipality cannot be

held liable under § 1983 solely because it employs a tortfeasor.”

The plaintiffs have not sued the individual City employees whose

alleged failure to complete paperwork caused the delay in returning

Ms. Towers’ vehicle to her; nor does the complaint allege that those

employees’ actions were taken pursuant to any policy or practice

attributable to the City itself. The complaint states that “the City

of Chicago, acting through its designated employees, had not

‘completed the paperwork’ necessary to return the car to Towers.”

R.22 at 9. Under Monell, the City cannot be held liable for the

constitutional torts of its employees unless the employees’ actions

were pursuant to official municipal policy. The plaintiffs’ complaint

contains no allegation that the employees’ actions in delaying the

return of Ms. Towers’ vehicle were pursuant to any policy or custom

of the City. Therefore, the plaintiffs have not stated a claim against

the City under § 1983 for violation of the Fourth Amendment.

ee a ee ee

A ee

ee ew

ww Sine wore

23a

Appendix A

Conclusion

Accordingly, the decision of the district court granting

the motion to dismiss is affirmed.*

AFFIRMED.

8. The plaintiffs’ contention that the district court erred in

denying the class certification is moot. See Inman v. Shalala, 30

F.3d 840, 844 n. 1 (7th Cir.1994); Chambers v. American Trans

Air, Inc., 17 F.3d 998, 1006 (7th Cir.), cert. denied, 513 U.S. 1001,

115 S.Ct. 512, 130 L.Ed.2d 419 (1994); Price v. FCC Nat’! Bank,

4 F.3d 472, 475 (7th Cir.1993), cert. denied, 510 U.S. 1046, 114

S.Ct. 695, 126 L.Ed.2d 662 (1994).

24a

APPENDIX B — MINUTE ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE NORTHERN

DISTRICT OF ILLINOIS DATED OCTOBER 239, 1997

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

Michael W. Dobbins Office of the Clerk

CLERK

Thomas M. Peters

Attorney at Law

343 South Dearborn Street

Suite 1400

Chicago, IL 60604

Case Number: 1:96-cv-06510

Other Court No: 96 CH 9337

Title: Towers v. Chgo, City of

Assigned Judge: Honorable Arlander Keys

MINUTE ORDER of 10/29/97 by Hon. Arlander Keys:

Defendants Kapa and Torres’ agreed motion to vacate

minute order of 10/14/97 is granted. [70-1] The Court’s

order of 10/14/97 dismissing claims against defendants

Kapa and Torres is stricken. The charges against said

defendants are hereby reinstated. Mailed notice

This docket entry was made by the Clerk on October 30,

1997

25a

APPENDIX C — ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE NORTHERN DISTRICT

OF ILLINOIS DATED OCTOBER 14, 1997

UNITED STATES DISTRICT COURT,

NORTHERN DISTRICT OF ILLINOIS

Name of Assigned Judge ARLANDER KEYS

or Magistrate Judge

Case Number 96C 6510

Date October 14, 1997

Case Title Sandra Towers, et al v. City of Chicago, et al

MOTION:

Defendants Kapa and Torres’ agreed motion to alter or

amend judgment

DOCKET ENTRY:

{) Filed motion of

26a

Appendix C

{ (Other docket entry) Defendants Kapa and Torres’

Agreed Motion to Alter or Amend Judgment is granted.

Specifically, the Court’s September 30, 1997

Memorandum Opinion and Order, at n. 10, is amended

to include dismissal of any and all claims that Plaintiff

Kevin Amos asserted against Defendant Police Officers

Christopher Kapa and Ignacio Torres.

« * +

s/ [illegible]

courtroom deputy’s initials

* * * .

aaiietetttianias

27a

APPENDIX D — MEMORANDUM OPINION AND

ORDER OF THE UNITED STATES DISTRICT

COURT FOR THE NORTHERN DISTRICT

OF ILLINOIS, EASTERN DIVISION

DATED SEPTEMBER 30, 1997

Sandra TOWERS, Robert Sturdivant, and Kevin

Amos, individually and on behalf of all others

similarly situated, Plaintiffs,

v.

CITY OF CHICAGO, Defendant.

No. 96 C 6510.

United States District Court,

N.D. Illinois,

Eastern Division.

Sept. 30, 1997.

- * -

MEMORANDUM OPINION AND ORDER

KEYS, United States Magistrate Judge.

This matter comes before the Court on Plaintiffs’

Motion to Certify Class pursuant to Federal Rule of Civil

Procedure 23, Plaintiffs’ Motion for Preliminary Injunction,

and Defendant’s Motion to Dismiss pursuant to Federal Rule

of Civil Procedure 12(b)(6). For the following reasons,

Plaintiffs’ Motion to Certify Class, and Plaintiffs’ Motion

for Preliminary Injunction are denied, and Defendant's

Motion to Dismiss is granted.

28a

Appendix D

PROCEDURAL HISTORY

On August 30, 1996, Plaintiff, Sandra Towers, filed

suit against Defendant, City of Chicago (the “City”), in state

court, seeking a common law writ of certiorari to contest

the final order of the City’s administrative hearing officer

and alleging violations of 42 U.S.C. § 1983 (“§ 1983”).

The City petitioned to remove the case to this Court, under

federal question jurisdiction pursuant to 28 U.S.C. § 1441(b)

& (c), and § 1446. On January 27, 1997, Ms. Towers filed

her Second Amended Complaint (“Complaint”) which

added two additional Plaintiffs, Robert Sturdivant and Kevin

Amos.

BACKGROUND FACTS

I. Facts Relating to Plaintiff Towers

On January 27, 1996, the City seized and impounded

Ms. Towers’ car pursuant to Chicago Municipal Code § 7-

24-225, which authorizes the seizure of a vehicle that

arresting officers have probable cause to believe contains a

controlled substance. (Complaint at Count III, {4 7, 10, 14,

15.) At that time, Ms. Towers’ car was being operated by

her acquaintance, Ray Chambers, without her “express

permission.” (Complaint at Count III, J] 8-9.) When police

officers stopped and searched the car, they found a

controlled substance on a passenger in the car and, therefore,

impounded the vehicle. (Complaint at Count III, 4 10, 15,

16.) Ms. Towers was not present when her car was searched

or seized, nor had she given anyone, including Mr.

Chambers, permission to transport controlled substances in

her car. (Complaint at Count I, ¥ 3; Count III, J9 11-12.)

ee ee

EEE EEE

(SMe ET hc te Tw

29a

Appendix D

The following day, even though Ms. Towers had the

appropriate paperwork and monies due, the City did not

release her car to her because it had not yet completed the

necessary paperwork. (Complaint at Count III, {J 19-20.)

Ms. Towers attempted to retrieve her car from the City

between January 28 and February 6, 1996. (Id.) However,

at no time was she given notice of her right to demand a

preliminary hearing, and, for that reason, she did not request

such hearing.' (Complaint at Count I, 4 6; Count III, 4,18.)

Ms. Towers finally retrieved her car after paying a $500

cash bond and $225 for towing and storage fees. (Complaint

at Count III, J9 21, 22, 28.)

1. Each of the City’s ordinances challenged in the Complaint,

under which vehicles are impounded, include provisions for a

preliminary hearing on the probable cause for the seizure, followed

by written notice of the right to a final administrative hearing within

30 days. Notice of the violations, and of the owner’s right to request

a preliminary hearing, is given verbally to the person in control of

the vehicle at the time of seizure. Chicago Municipal Code § 11-4-

1115(c)(3) (sound violations for excessive noise) provides that:

[w]henever the owner of a vehicle seized pursuant to

this section requests a preliminary hearing within 12

hours after the seizure, a hearing officer of the City

shall conduct such preliminary hearing within 24 hours

after the seizure, excluding Sundays and holidays.

Section 8-20-015(c) (illegal firearms violations) contains the same

provision, except that the request for preliminary hearing must be

made within 12 hours, both in person, and in writing. Section 7-

24-225(c) (controlled substances violations) requires the request

for a preliminary hearing to be received within 24 hours and made

in writing.

30a

Appendix D

On or about February 2, 1996, Ms. Towers received a

letter notifying her of her right to a final hearing, at which

she could contest the fees and costs of impoundment.

(Complaint at Count III, 4 23.) At the hearing, pursuant to

Chicago Municipal Code § 7-24-225, Ms. Towers was

precluded from entering an innocent-owner defense because

none of the ordinance’s available defenses applied to

her situation.? (Complaint at Count III, J 23, 25.)

Consequently, on March 8, 1996, a final administrative

order was entered against Ms. Towers. (Complaint at Count

I, 4 15.)

II. Facts Relating to Plaintiff Sturdivant

In September of 1996,’ Chicago police officers seized

and impounded Mr. Sturdivant’s car under Chicago

Municipal Code § 8-20-015, which provides for the

imposition of fines and fees against registered owners of

automobiles that contain an unregistered firearm.

(Complaint at Count II, JJ 7-10.) A person, not Mr.

2. Under the ordinance, a registered owner can defend on three

grounds only: (a) the vehicle used in the violation was stolen at

the time and the theft was reported to the appropriate police

authorities within 24 hours after the theft was discovered or

reasonably should have been discovered; (b) the vehicle was being

operated as a common carrier and the violation occurred without

the knowledge of the person in control of the vehicle; or (c) the

presence of the controlled substance and/or cannabis was authorized

under the Controlled Substance Act and/or the Cannabis Control

Act. (Complaint at Count III, 4 25.)

3. No specific date is provided in the Complaint.

= 3la

Appendix D

Sturdivant, was in Mr. Sturdivant’s car and possessed a

firearm at the time of the violation.‘ (Complaint at Count

II, 4 9.) Like Ms. Towers, Mr. Sturdivant was never notified

by the City of his right to request a preliminary hearing,

and did not request one. (Complaint at Count II, 4 11.) On

or about October 1, 1996, Mr. Sturdivant received notice

of his right to a final hearing concerning the impoundment

of his car. (Complaint at Count II, J 12.) Pursuant to Chicago

Municipal Code § 8-20-015, Mr. Sturdivant was precluded

from asserting his innocent-owner defense at a final hearing

because no such defense is permitted under the ordinance.°

Because Mr. Sturdivant cannot avail himself of any of the

defenses provided by the ordinance, he “will lose the

hearing. .. .” (Complaint at Count II, J 14-15.)° Further,

because he was unable to pay the $500 cash bond, and

additional towing and storage fees, he could not use his

vehicle for approximately fifteen days. (Complaint at Count

II, {4 20-21.)

4. It is unclear from the pleadings whether Mr. Sturdivant

was anywhere near his vehicle at the time of the violation.

5. The only defenses available to defendants under Chicago

Municipal Code § 8-20-015 are: (a) the vehicle used in the violation

was stolen at that time and the theft was reported to the appropriate

police authorities within 24 hours after the theft was discovered or

reasonably should have been discovered; (b) if the vehicle is

operating as a common carrier and the violation occurs without

the actual knowledge of the person in control of the vehicle; or (3)

the owner proves that the presence of the firearm was permissible.

(Complaint at Count II, J 13.)

6. Mr. Sturdivant does not allege that, at the time of the filing

of the Complaint, he had attended any final hearing or that any

final judgment had been entered against him.

32a

Appendix D

III. Facts Relating to Plaintiff Amos

On October 29, 1996, Mr. Amos was seated inside his

automobile, with his windows rolled up, at a gas station.

(Complaint at Count X, Jf 8-10.) He was counting his gas

money and playing his car radio. (Id. at § 10.) Two Chicago

police officers ordered Mr. Amos out of his car, searched

him, and searched his vehicle. (Complaint at Count II,

4] 11-13.) No contraband was found on his person or in his

car. (Complaint at Count II, 4 14.)

The officers charged Mr. Amos with violating sound

device restrictions for playing his radio too loudly, pursuant

to Chicago Municipal Code § 11-4- 1115(c). (Complaint at

Count II, Jf 15-16.) The officers then seized his vehicle,

and gave him a date to appear in traffic court on that charge.

(Complaint at Count II, J] 15-16.) The officers also gave

Mr. Amos notice of his right to request a preliminary hearing

to contest probable cause. (Complaint at Count II, 44 19-

20.)

At the preliminary hearing, on the day following

impoundment, Mr. Amos appeared, but the arresting officers

did not; the hearing officer concluded that there was

sufficient probable cause to hold his automobile. (Complaint

at Count II, ¥§ 19-20.) At the time of the filing of the

Complaint, Mr. Amos had not received notice of his final

hearing. (Complaint at Count II, J 21.)’ Mr. Amos was

7. Plaintiff does not differentiate between the date police

officers gave him at the time they seized his automobile, and receipt

of final notice. It is the Court’s understanding that the date given

to him by the police officers to contest the violation in traffic court,

and notice of his final hearing, may represent notice for the same

hearing.

33a

Appendix D

unable to pay the $500 fine pursuant to the statute, for “many

days.” (Complaint at Count II, 4 22.)

DISCUSSION

I. Defendant’s Motion to Dismiss

Pursuant to Federal Rule of Civil Procedure 12(b)(6),

a motion to dismiss for failure to state a claim upon which

relief can be granted tests the legal sufficiency of the

complaint. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct.

99, 101-02, 2 L.Ed.2d 80, (1957); Chicago Dist. of

Carpenters Pension Fund v. G & A Installations, Inc., No.

95 C 6524, 1996 WL 66098, at *1 (N.D.III. Feb.8, 1996).

The Court must determine whether the plaintiffs would be

entitled to relief under any set of facts that could be

established in support of their claim. Hishon v. King &

Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232-33, 81

L.Ed.2d 59 (1984). In deciding a Rule 12(b)(6) motion, the

court accepts as true all well-pled factual allegations in the

complaint, and draws all reasonable inferences therefrom

in the plaintiffs’ favor. Lashbrook v. Oerkfitz, 65 F.3d 1339,

1343 (7th Cir.1995); Conley, 355 U.S. at 45-46, 78 S.Ct. at

101-02. The court will dismiss the complaint only when it

appears beyond doubt that the plaintiffs have alleged no

facts which, if proved, would entitle them to relief. Id.;

Chaney v. Suburban Bus Div. of Regional Transp. Auth.,

52 F.3d 623, 627 (7th Cir.1995).

A. Count I: Ms. Towers’ Common Law Writ of

Certiorari

Ms. Towers seeks a common law writ of certiorari for

review of the final order of the administrative hearing held

34a

Appendix D

on February 22, 1996.* Under Illinois law, state courts

may issue common law writs of certiorari to an inferior

administrative tribunal, if that tribunal has exceeded its

jurisdiction, or proceeded illegally, and no direct appeal or

review of its proceedings is available. Goodfriend v. Board

of Appeals of Cook County, 18 Ill.App.3d 412, 305 N.E.2d

404, 409 (1973); see Holstein v. City of Chicago, 29 F.3d

1145, 1148 (7th Cir.1994) (recognizing defendant’s right

to seek review of municipality’s administrative decision by

State circuit court under writ of certiorari, citing Graff v.

City of Chicago, 9 F.3d 1309, 1325 (7th Cir.1993), cert.

denied, 511 U.S.-1085, 114 S.Ct. 1837, 128 L.Ed.2d 464

(1994)).

The reviewing court cannot examine extrinsic evidence

absent statutory authorization. Goodfriend, 305 N.E.2d at

410. Nor can it weigh evidence or substitute its judgment

for the discretion and judgment of the administrative agency.

Quinlan and Tyson, Inc. v. City of Evanston, 25 Ill.App.3d

879, 324 N.E.2d 65, 74 (1975). A reviewing court can,

however, examine all questions of fact and law contained

in the record, including a de novo review of any

constitutional issues. Holstein, 29 F.3d at 1148 (citing

Howard v. Lawton, 22 II1.2d 331, 175 N.E.2d 556 (1961)).

Under Illinois law, a plaintiff seeking administrative review

on constitutional grounds must raise those issues at the

“earliest opportunity.” Head-On Collision Line, Inc. v. Kirk,

8. Mr. Sturdivant and Mr. Amos do not join Ms. Towers’

Petition for a Common Law Writ of Certiorari. The pleadings

indicate that neither Mr. Sturdivant nor Mr. Amos had attended a

final hearing or received a final administrative order concerning

their alleged violations of the City’s ordinances.

35a

Appendix D

36 Ill. App.3d 263, 343 N.E.2d 534, 538 (1976). Generally,

a reviewing court should not interfere with an administrative _

body’s discretionary authority, unless exercise of it is

arbitrary and capricious, or such action is against the

manifest weight of the evidence. Hanrahan v. Williams, 174

I11.2d 268, 220 Ill.Dec. 339, 342, 673 N.E.2d 251, 254

(111.1996), petition for cert. filed, 65 U.S.L.W. 3799 (U.S.

Mar. 3, 1997) (No. 96-1860).

The gravamen of Ms. Towers’ claim is that she was

denied a preliminary hearing and the opportunity to plead

her innocence at the final hearing. Ms. Towers does not

allege that the legal standard was misapplied to the facts of

her case, nor that the administrative tribunal acted

capriciously, arbitrarily or illegally. As addressed below,

the Court finds that the City’s procedures, regarding

Plaintiffs’ § 1983 claims, did not (as applied), and do not

(facially), violate the Due Process Clause of the Fourteenth

Amendment. Accordingly, Ms. Towers’ claim for Common

Law Writ of Certiorari in Count I is dismissed.’

9. In the first of a series of inauspicious arguments, the City

argues that Plaintiffs dismissed supplemental jurisdiction for Count

I under 28 U.S.C. § 1367 in their footnote expanding upon a

paragraph discussing Counts II-XIV. (Pls.’ Resp., at 6 n. 3.) The

Court does not read this section of Plaintiffs’ memorandum to

include any expression of their intent to dismiss Count I.

Second, the City erroneously contends that the Court lacks

subject matter jurisdiction over Count I because all § 1983 counts

fail to state a claim. However, the City overlooks the fact that it,

and not Ms. Towers, removed this case to federal court for subject

(Cont'd)

36a

Appendix D

B. Counts II through IX, XI and XIII: § 1983 Claims

Section 1983 provides a cause of action for persons

deprived of constitutionally protected rights. Specifically,

§ 1983 imposes liability on those persons who, acting under

color of state authority, deprive another of a right secured

by the Fourteenth Amendment. Adickes v. S.H. Kress &

Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 1605-06, 26 L.Ed.2d

142 (1970). Congress passed § 1983 “ ‘for the express

purpose of ‘enforc[ing] the Provisions of the Fourteenth

Amendment.’ ’” Lugar v. Edmondson Oil Co., Inc., 457

U.S. 922, 934, 102 S.Ct. 2744, 2752, 73 L.Ed.2d 482 (1982)

(quoting Lynch v. Household Finance Corp., 405 U.S. 538,

(Cont'd)

matter jurisdiction over the § 1983 claims pursuant to 28 U.S.C.

§§ 1441 and 1446. (Def.’s Pet. For Removal, at |.) In the same

vein, the City also reasons that Plaintiffs’ § 1983 claims are

supplemental to Plaintiff's Common Law Writ of Certiorari, under

Count I. (Def.’s Reply, at 3.) The reverse is true. Therefore, Ms.

Towers’ Common Law Writ of Certiorari, under Count, I is before

the Court under supplemental jurisdiction.

Lastly, the City argues that Ms. Towers waived her right to

assert any constitutional claims by failing to present them at the

earliest possible time. (Def.'s Reply Mem., at 3-5.) On the contrary,

the record clearly illustrates that Ms. Towers has stated her

constitutional claims at every step of this litigation from the start.

(See, e.g., Def.’s Pet. for Removal, at Ex. A.)

Therefore, the Court rejects the City’s argument that Ms.

Towers waived her right to petition for common law writ of

certiorari by voluntarily dismissing all supplemental claims under

28 U.S.C. § 1367.

37a

Appendix D

§45, 92 S.Ct. 1113, 1118-19, 31 L.Ed.2d 424 (1972)

(quoting Cong. Globe, 42 Cong., Ist Sess., App. 69 (1871))).

To state a claim under § 1983, a plaintiff must allege

a violation of a federal right. Wright v. Roanoke

Redevelopment and Hous. Auth., 479 U.S. 418, 431-32,

107 S.Ct. 766, 774-75, 93 L.Ed.2d 781 (1987); Middlesex

County Sewerage Auth. v. National Sea Clammers Ass'n,

453 U.S. 1, 19, 101 S.Ct. 2615, 2625-26, 69 L.Ed.2d 435

(1981). Municipalities are liable under § 1983 for actions

or policies which are found to be either unconstitutional or

illegal. Monell v. Department of Soc. Servs., 436 U.S. 658,

660, 98 S.Ct. 2018, 2020, 56 L.Ed.2d 611 (1978). However,

a municipality's liability is limited to those acts which it

has “officially sanctioned or ordered.” Pembaur v. City of

Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 1298, 89

L.Ed.2d 452 (1986).

In the Complaint, Plaintiffs allege that the City deprived

them of their federally protected constitutional rights by

enforcing various vehicle seizure ordinances. Counts II, III,

VI, VII, and XI assert due process violations under the

Fourteenth Amendment; Counts IV, V, and XIII assert

violations of the Excessive Fines Clause of the Eighth

Amendment, made applicable to the states by the Fourteenth

Amendment; Counts VIII and IX assert unreasonable

seizures under the Fourth Amendment, made applicable to

the states by the Fourteenth Amendment; and Count XIV

asserts a class action claim for Counts II-VI, XI and XIII.'°

10. The City’s Motion to Dismiss for failure to state a claim

under Rule 12(b)(6) does not include Counts X and XII of the

Complaint. However, for the reasons set forth below, said Counts

are also dismissed.

38a

Appendix D

For the reasons set forth below, all of Plaintiffs’ claims are

dismissed for failure to state a claim on which relief can be

granted.

1. Counts II, II], VI, VII and XI: Fourteenth

Amendment Due Process Claims

Plaintiffs allege that the City’s ordinances, as “written

and enforced,” violate the Due Process Clause of the

Fourteenth Amendment, because none provide for a prompt

post-deprivation hearing, and because they preclude

plaintiffs from asserting an innocent-owner defense during

administrative hearings. Because these Counts contain both

procedural and substantive due process claims, the Court

will address each in turn.''

a. Procedural Due Process Analysis

Procedural due process prohibits the government from

taking some action, which directly impairs a person’s

property interests, before a hearing is held during which

the affected person may be heard. Mathews v. Eldridge,

424 U.S. 319, 332, 96 S.Ct. 893, 901, 47 L.Ed.2d 18 (1976).

11. The City argues that Plaintiffs have only asserted facial

challenges, to the constitutionality of its ordinances, for failure to

provide procedural due process. (Def.’s Resp. to Sur-Reply, at 4.)

viewing it in a light most favorable to the Plaintiffs, this Court

reads Plaintiffs’ Complaint as asserting both facial and as applied

challenges with regard to procedural and substantive due process

violations. However, this distinction does not impact the result of

the Court's constitutional analysis of the City’s challenged

ordinances.

—

39a

Appendix D

The focus of this analysis.is, therefore, on the hearing

process, and not on the fairness of the rule. Because due

process is a flexible concept, its procedural protections vary

depending on the particular right being deprived. Morrissey

v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33

L.Ed.2d 484 (1972).

To determine whether a challenged process adequately

protects a federal right, the court must weigh three factors

initially laid out in Mathews: (1) the type and importance

of the private interest affected by the government action,

including the duration and permanence of deprivation; (2)

the risk of erroneously depriving such interest under the

challenged procedures, and the “probable value ... of

additional or substitute procedural safeguards; and (3) the

governmental function involved and state interests served

by such procedures, as well as the administrative and fiscal

burdens, if any, that would result from the substitute

procedures sought. Miller v. City of Chicago, 774 F.2d 188,

192 (7th Cir.1985), cert. denied, 476 U.S. 1105, 106 S.Ct.

1949, 90 L.Ed.2d 358 (1986) (citing Mathews, 424 U.S. at

335, 96 S.Ct. at 903; Logan v. Zimmerman Brush Co., 455

U.S. 422, 434, 102 S.Ct. 1148, 1156-57, 71 L.Ed.2d 265

(1982)).

For the first Mathews factor, Plaintiffs have a protected

property interest in the use of their automobiles under

§ 1983. Sutton v. City of Milwaukee, 672 F.2d 644, 645-46

(7th Cir.1982). Because this property interest includes the

use of the automobiles, and because “[a]utomobiles occupy

a central place in the lives of most Americans, providing

access to jobs, schools, and recreation as well as to the daily

40a

Appendix D

necessities of life,” Plaintiffs have a substantial interest in

a prompt hearing on whether seizures of the vehicles were

conducted with probable cause. Coleman v. Watt, 40 F.3d

255, 261 (8th Cir.1994).

Under the second Mathews factor, the risk of wrongful

deprivation, due to procedural faults, is minimal here.

Plaintiffs’ constitutional right to procedural due process is

protected by the procedures employed by the City and the

review procedures provided under Illinois and local laws.

Under the challenged ordinances, an individual cited for a

violation has notice of, and a right to, a preliminary post-

deprivation hearing. (See Chicago Municipal Code §§ 7-

24-225(c), 8-20-015(c) and 11-4-1115(c)(3), supra n. 1.)

Additionally, a person has notice of, and a right to, a final

hearing. (Complaint at Count II, § 12.) These post-

deprivation hearings are adequate to remedy the wrongful

deprivations of vehicles. See Holstein, 29 F.3d at 1148

(citing Kauth v. Hartford Ins. Co. of Ill., 852 F.2d 951, 955-

56 (7th Cir.1988)).

Furthermore, if the vehicle owner is unhappy with the

administrative decision, he or she may petition the Illinois

circuit courts for acommon law writ of certiorari, to review

the findings of a municipality’s administrative body. Graff,

9 F.3d at 1325. Finally, if the owner is able to prove that

such an administrative hearing is illusory or futile, he or

she can bring a state court action for replevin.'? Holstein,

29 F.3d at 1148 (citation omitted).

12. Under the facts presented in this case, Ms. Towers would

have been able to bring an action for replevin, in state court, under

(Cont'd)

4la

Appendix D

Plaintiffs argue that their right to a preliminary hearing

is illusory because the City has no method of notifying those

owners who are not in possession of their cars at the time

of seizure. (Plaintiffs’ Response, at 23.) The City, however,

is not obligated to locate and notify every registered owner.

Rather, it must use procedures “reasonably calculated” to

notify the owner. Robinson v. Hanrahan, 409 U.S. 38, 40,

93 S.Ct. 30, 31-32, 34 L#d.2d 47 (1972). Each of the

challenged ordinances requires the ticketing police officer

to give notice of the owner’s rights. This notice can be given

to the person identifying himself as the owner, or the person

(Cont'd)

735 ILL. COMP. STAT. 5/19-101 et seq. (West’s 1993 &

Supp.1997). Replevin is an action whereby an owner, who is

entitled to possession of goods or chattels, may recover them from

one who has wrongfully detained them. Jim’s Furniture Mart, Inc.

v. Harris, 42 Ill.App.3d 488, 1 Ill.Dec. 175, 356 N.E.2d 175, 176

(1976). A plaintiff in a replevin action must give the defendant

five days’ written notice of the state court hearing. 735 ILL. COMP.

STAT. 5/19-106. At the hearing, the plaintiff must prove a “superior

right to possession of the disputed property,” and show a likelihood

of prevailing on his or her claim to possession. Id. at 5/19-107.

Ms. Towers could have brought an action in replevin and

argued that, by delaying the return of her vehicle, despite her

willingness and ability to pay, the City wrongfully detained her

property. In addition to receiving her car, Ms. Towers could also

have been awarded damages caused by any wrongful delay. Id. at

5/19-125.

Because Ms. Towers has not brought an action in replevin,

the issue of the merits of such action are not before the Court in

the case at bar, and, therefore, are not subject to review.

42a

Appendix D

in control of the vehicle, at the time of the alleged violation

and seizure. The Court finds that this practice is reasonably

calculated to notify owners of their rights.

Contrastingly, in Coleman, 40 F.3d at 261, the Eighth

Circuit pronounced that a seven day delay in notifying a

registered owner about the seizure of his car was excessive

and constituted a procedural due process violation. The crux

of the Eighth Circuit’s analysis was that, even though “[t]he

risk of erroneous deprivation is neither increased nor

decreased by the timing of the postdeprivation hearing... .

a more expeditious hearing would significantly reduce the

harm suffered by owners wrongly deprived of the use of

their vehicles.” Coleman, 40 F.3d at 261.

The parties dispute whether Plaintiffs truly had access

to a preliminary, post-deprivation hearing. Plaintiffs cite

several cases to demonstrate that the City’s final hearing,

thirty days after the seizure occurred, is too far delayed to

provide due process.'’ Plaintiffs argue that, because they

13. Plaintiffs cite Coleman, 40 F.3d 255 (hearing after seven-

day delay is unconstitutional); Goichman v. City of Aspen, 859

F.2d 1466 (10th Cir.1988) (hearing within forty-eight hours of

demand is constitutional); DeFranks v. Mayor of Ocean City, 777

F.2d 185 (4th Cir.1985) (one day’s notice and hearing within

twenty-four hours of demand is constitutional); Cokinos v. District

of Columbia, 728 F.2d 502 (D.C.Cir.1983) (hearing within twenty-

four hours is constitutional); Goichman v. Rheuban Motors, Inc.,

682 F.2d 1320 (9th Cir.1982) (hearing after forty-eight hours is

constitutional); and Stypmann v. City and County of San Francisco,

557 F.2d 1338 (9th Cir.1977) (hearing after five days is

unconstitutional). (Pls.” Resp. to Def.’s Mot. to Dismiss, at 23-

24.)

43a

Appendix D

did not receive notice of their right to a preliminary hearing,

the first and only post-deprivation hearing to which they

are entitled under the ordinances becomes the final hearing

before the administrative hearing officer. Plaintiffs further

argue that, because these hearings occur thirty days after

the City impounds a vehicle, an innocent owner is wrongly

denied use of his vehicle for a prolonged period.

The City, on the other hand, contends that, because the

preliminary hearing is available within twenty-four hours

of the seizure, it, and not the final hearing, is the true

measure of the delay in receiving a hearing. The City argues

that, because these hearings occur within twenty-four hours

from the time of impoundment, there is no constitutional

violation. The City’s policy under the ordinances is similar

to that in Breath v. Cronvich, 729 F.2d 1006 (Sth Cir.1984),

cert. denied, 469 U.S. 934, 105 S.Ct. 332, 83 L.Ed.2d 268

(1984). In that case, the Fifth Circuit upheld the

constitutionality of an appearance bond procedure, coupled

with a hearing on the underlying traffic violations within a

reasonable time. Id. at 1011. Similarly, in this case, in

addition to the preliminary hearing within twenty-four

hours, the City permits owners to pay a $500 bond to retrieve

their vehicles for normal use until the final hearing before

an administrative hearing officer.'* Plaintiffs cite to no

14. Under each ordinance, at the final hearing, the hearing

officer determines, by a preponderance of the evidence, whether

the ordinance was violated. See, e.g., Chicago Municipal Code

§ 7-24-225(d)-(e). If the hearing officer finds that the ordinance

was violated, the City will either: keep the posted $500 bond as

payment for the fine; hold the vehicle until the fine is paid; or sell

(Cont’d)

2

5

6

q

44a

Appendix D

authority holding that this practice lacks adequate due

process protections. Cf. Breath, 729 F.2d at 1006; Goichman

v. Rheuban Motors, Inc., 682 F.2d 1320 (9th Cir.1982)

(holding due process does not require city to release cars to

owners under bond pending hearing on merits of traffic

violation) Clearly, these provisions, and the state and local

remedies, provide adequate procedural due process

protections.

Finally, as to the last prong of the Mathews analysis,

Plaintiffs offer no substitute procedures other than a decree

enjoining the City from impounding vehicles of allegedly

innocent owners. While the Court is sympathetic to the

plight of truly innocent owners faced with such a burden, it

cannot overlook the governmental functions involved in,

and the state interests served by, the enforcement of Chicago

Municipal Code §§ 7-24-255 and 8-20-015. The City has a

substantial interest in removing from the streets automobiles

which are being used to transport illegal weapons or drugs.

See, e.g., Miller, 774 F.2d at 193 (holding district court

erred in its Mathews analysis by according no weight to

defendant’s interest in removing vehicles from the streets).

After balancing the three Mathews factors, it is evident

that the City has not denied Plaintiffs due process.

Therefore, the City’s post-deprivation procedures under the

(Cont'd)

the vehicle, and apply the proceeds to the fine and costs, before

- returning the remaining monies to the registered owner. See § 7-

24-225(d)-(e). The City sells the vehicle only when the period

allowed for judicial review expires, or when judicial review results

in a finding for the City. § 7-24-225(f).

45a

Appendix D

challenged ordinances, coupled with Plaintiffs’ rights to

petition the state circuit courts for common law writs of

certiorari, and to pursue actions in replevin, adequately

protect Plaintiffs’ Fourteenth Amendment Procedural Due

Process rights."

i. Mr. Amos’ Claims

Mr. Amos did not plead that he had inadequate notice

at any time before his preliminary or final hearings. Nor

does he plead that he was denied a final hearing. Instead,

he states that he was given notice of his right to a preliminary

hearing, and that he “has not yet received notice of his final

hearing.” (Complaint, at Count X, 44 19-20.) Simply

because he has not “yet” received his notice, does not mean

that a final hearing was held without notice thereof.

Alternatively, Mr. Amos may have received notice of a date

to appear to contest his citation in traffic court when he

initially received that citation from the police officers on

October 29, 1996. In that event, Mr. Amos cannot assert

that he was never notified, and therefore, denied due process.

As such, Mr. Amos fails to allege that he was denied

procedural due process by the City.

15. Even if Plaintiffs had, arguendo, asserted a due process

claim because they were denied a pre-deprivation hearing, that

claim too would have failed. See, e.g., Holstein, 29 F.3d at 1148

(finding Due Process Clause does not require a pre-deprivation

hearing for owners of parked cars before towing; citing Sutton v.

City of Milwaukee, 672 F.2d 644 (7th Cir.1982)).

4

46a

Appendix D

11. Ms. Towers’ Claims

At some point after the seizure of her automobile, Ms.

Towers became aware of the fact that her car had been

impounded. Ms. Towers does not allege that the City did

not notify Mr. Chambers, the driver of the car at the time of

seizure (as it is required to do under § 7-24-225(c)). Rather,

she alleges that, because the City did not inform her directly

of her right to a preliminary hearing, she was unable to

request a preliminary hearing, and was, therefore, denied

due process.

Although short of Ms. Towers’ standard for notice, the

City is only required to give notice “reasonably calculated”

to apprise an individual of his or her rights. Robinson, 409

U.S. at 40, 93 S.Ct. at 31-32. The City’s ordinances comport

with this standard by requiring its police officers, at the

time of a violation, to provide notice to the person who is

in control of the vehicle. The City is not required to ensure

that every registered owner is personally notified of his or

her right to a proceeding.

As illustrated above, the City provided Ms. Towers with

the requisite procedural due process protections under the

Constitution. For those reasons, Ms. Towers fails to state a

claim upon which relief can be granted.

ili. Mr. Sturdivant’s Claims

Because Mr. Sturdivant’s claims for procedural due

process are the same as those asserted by Ms. Towers, he

47a

Appendix D

too has failed to state a claim upon which relief can be

granted.'®

b. Substantive Due Process Analysis

Substantive due process guarantees that the essential

purpose of a law or governmental action is compatible with

the Constitution. Therefore, the fairness of the rule at hand

is scrutinized, not the fairness of the decision-making

process through which it is applied.

Plaintiffs also allege that the City’s ordinances permit

fines, constituting a criminal penalty of $500 (plus the

towing and storage fees), while simultaneously denying an

innocent-owner defense to those individuals appearing to

contest the fines. The City contends that the ordinances are

not criminal in nature and that, as a civil penalty, the fines

are constitutional. As developed below, the City’s

16. The City argues that, because Mr. Sturdivant had not yet

availed himself of his final hearing, he lacks standing to challenge

the City’s ordinance, and that his claim is not ripe for adjudication.

The City’s contention is unfounded. To require Mr. Sturdivant to

gain standing by forcing him to attend a final hearing, where his

sole defense is precluded by the ordinance, would serve no

legitimate purpose. See, e.g., Sierra Club v. Marita, 46 F.3d 606,

612 (7th Cir.1995) (“unless a plaintiffs purported interest in the

matter is wholly speculative, waiting any longer to address that

injury makes little sense.”); Triple G Landfills, Inc. v. Board of

Comm'rs of Fountain County, Ind., 977 F.2d 287, 291 (7th

Cir.1992) (“ripeness doctrine requires a live, focused case of real

consequence to the parties. It does not require [plaintiff] to jump

through a series of hoops, the last of which [he or she] is certain to

find obstructed by a brick wall.”)

«

48a

Appendix D

ordinances are analogous to civil in rem forfeiture actions,

and do not levy criminal fines. As such, the Court finds

that the City’s ordinances prescribe constitutionally

permissible civil fines.'’

The City’s fines are analogous to civil in rem

forfeitures. In Bennis v. Michigan, 516 U.S. 442, 116 S.Ct.

994, 134 L.Ed.2d 68 (1996), the Supreme Court upheld the

constitutionality of a Michigan in rem forfeiture statute, as

17. Plaintiffs also allege that due process was denied because

they were unable to cross-examine police officers at the hearings,

and that the hearings themselves were conducted by the City’s own

biased hearing officers. Primarily because these assertions rest on

the premise that the ordinances are criminal in nature, they fail to

state a claim under the Due Process Clause of the Fourteenth

Amendment.

First, for the reasons set out in this Opinion, the challenged

ordinances are civil, not criminal, in nature. Second, there is no

absolute right to confront police officers who issue citations for

violations of the City’s ordinances. Van Harken v. City of Chicago,

103 F.3d 1346, 1352 (7th Cir.) cert. denied, U.S. __, 117 S.Ct.

1846, 137 L.Ed.2d 1049 (1997) (finding no absolute right in parking

violations hearing to cross-examine ticketing officers). Third,

Plaintiffs cannot assume that the City’s hearing officers endeavor

to “maximize the City’s ‘take’ ” during the hearings. Van Harken,

103 F.3d at 1352. (finding that the “adjudicative reliability of

hearing officers is not fatally compromised” due to their

employment relationship with the defendant).

Therefore, Plaintiffs arguments that they were denied due

process at the administrative hearings fail to state a claim upon

which relief can be granted.

49a

Appendix D

it applied to innocent owners of seized property.'* In Bennis,

the plaintiff contended, inter alia, that she was denied her

property interest without the due process protections of the

Fourteenth Amendment, because she was denied notice or

an opportunity to contest the forfeiture. Id. at __, 116 S.Ct.

at 997. The plaintiff claimed that she was entitled to assert

that she was an innocent owner, and that she had entrusted

the car to her husband, who, unbeknownst to her, used it to

violate Michigan’s indecency laws (prostitution). Id.

The Supreme Court reviewed a “long, unbroken line”

of cases upholding in rem forfeiture actions against innocent

owners as constitutional. The Supreme Court drew a

distinction between two specific situations: (1) where a

vehicle is used by another without the owner’s consent; and

(2) where a vehicle is used by another with the owner’s

consent, but, for a purpose to which the owner did not

consent. Bennis,516U.S.at__-__n. 5, 116 S.Ct. at 998-

99 n. 5. Because the plaintiff in Bennis fell into this latter

group, the Supreme Court held that her interests were not

protected by the Due Process Clause of the Fourteenth

Amendment against an in rem forfeiture action. Id. at __,

116 S.Ct. at 999. Excerpts from two of the cited cases are

particularly illustrative of this distinction:

Cases often arise where the property of the owner

is forfeited on account of the fraud, neglect, or

18. In Bennis, the potice found plaintiff's husband engaging

in a sexual act, with a prostitute, in the family car. During the

ensuing civil forfeiture in rem action against the car, the wife’s

lack of knowledge that the car would be used in a proscribed manner

was not an available defense. Bennis, 516 U.S. at__, 116 S.Ct. at

997. F

50a

Appendix D

misconduct of those intrusted with its possession,

care and custody, even when the owner is

otherwise without fault ... and it has always

been held ... that the acts of [the possessors]

bind the interest of the owner . . . whether he be

innocent or guilty.

Id. at__, 116 S.Ct. at 998 (quoting Dobbins’ Distillery v.

United States, 96 U.S. 395, 401, 24 L.Ed. 637 (1877)).

It is not unknown or indeed uncommon for the

law to visit upon the owner of property the

unpleasant consequences of the unauthorized

action of one to whom he has entrusted it. . . .

{Many areas of law] suggest that certain uses of

property may be regarded as so undesirable that

the owner surrenders his control at his peril. . . .

Id. (Quoting Van Oster v. Kansas, 272 U.S. 465, 467-68,

47 S.Ct: 133, 134, 71 L.Ed. 354 (1926)).

The plaintiff in Bennis further argued that,

notwithstanding the precedent of the in rem forfeiture cases,

the Supreme Court should have required some level of

culpability before ordering the forfeiture. Id. at __, 116 S.Ct.

at 1000. In support of her argument, she cited Austin v.

United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d

488 (1993).'? She argued that, because the excessive fines

19. In Austin, the Supreme Court held that the Eighth

Amendment’s Excessive Fines Clause applies to civil in rem

(Cont’d)

a

Sla

Appendix D

clause was extended to protect the property interests of a

convicted criminal, it is unreasonable to omit a requirement

for some culpability in civil forfeiture actions against

innocent owners. Bennis, 516 U.S. at __, 116 S.Ct. at 1000.

The Supreme Court rejected her argument because Austin

did not concern an innocent owner defense, “other than to

point out that if a forfeiture statute allows such a defense,

the defense itself is ‘punitive’ in motive.” Id.

ya

In the case at bar, Plaintiffs raise the same arguments

as did the plaintiff in Bennis. Because the circumstances in

that case are analogous to this matter, the Court finds Bennis

controlling here, and rejects Plaintiffs’ arguments.

When the dust clears, Plaintiffs are left with a $500

fine (read “forfeiture”) on their property because they,

wrongfully or not, authorized others to use their

automobiles. Under the City’s ordinances, if they are unable

to pay this fine, the automobile is sold by the City to pay

the fine, and the remainder is returned to the registered

owner.”” Unlike Bennis, however, the City’s procedures

limit the forfeiture to $500 in every case, and do not require

(Cont'd)

forfeiture actions, when the purpose of those proceedings was, in

part, to punish. Austin, 509 U.S. at 622, 113 S.Ct. at 2812. Richard

Austin was sentenced to seven years’ imprisonment for possessing

cocaine with an intent to distribute. In addition to the sentence, the

government then filed an in rem forfeiture action to seize his mobile

home and auto body shop. Austin, 509 U.S. at 604, 113 S.Ct. at

2803.

20. See supra n. 14.

52a

Appendix D

forfeiture of the entire automobile, nor a percentage

thereof." ~

On a separate, but related argument, Plaintiffs allege

that the City’s ordinances are criminal, and therefore are

subject to criminal due process protections. Contrary to

Plaintiffs’ assertions, however, the City’s ordinances and

fines are not criminal in nature. In United States v. Ward,

448 U.S. 242, 248, 100 S.Ct. 2636, 2641, 65 L.Ed.2d 742

(1980), the Supreme Court defined a two step approach to

determining whether a penalty is civil or criminal. The first

step requires the court to determine whether the legislature

expressed a civil or criminal purpose behind the statute. Id.

at 249, 100 S.Ct. at 2641-42. If the statute was intended to

be civil in nature, the second step is to determine “whether

the statutory scheme [is] so punitive either in purpose or

effect as to negate that intention.” Id. To determine whether

the purpose or effect of a statute is punitive, courts are

guided by a seven-factor analysis established in Kennedy

v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d

644 (1963); Van Harken v. City of Chicago, 906 F.Supp.

1182, 1190-92 (N.D.II1.1995), aff'd as modified, 103 F.3d

1346 (7th Cir.), cert. denied, U.S. __,117 S.Ct. 1846,

137 L.Ed.2d 1049 (1997) (holding fines for parking

violations are not criminal in nature under the factors

supplied by Mendoza-Martinez).

21. This Court recognizes that the Supreme Court in Bennis

did not overrule the Michigan high court’s decision to reduce the

forfeiture under its equitable powers. This fact, however, does not

detract from the forcefulness of the Supreme Court’s ultimate

finding, that the civil in rem forfeiture procedure was constitutional.

——————

53a

Appendix D

These factors are:

[1] Whether the sanction involves an affirmative

disability or restraint, [2] whether it has

historically been regarded as a punishment, [3]

whether it comes into play only on a finding of

scienter, [4] whether its operation will promote

the traditional aims of punishment — retribution

and deterrence, [5] whether the behavior to which

it applies is already a crime, [6] whether an

alternative purpose to which it may rationally

be connected is assignable for it, and [7] whether

it appears excessive in relation to the alternative

purpose assigned... .

Mendoza-Martinez, 372 U.S. at 168-69, 83 S.Ct. at 567-68

(footnotes omitted). Where a statute is intended to be civil,

it should be found criminal “only with the clearest of

proof... .” Ward, 448 U.S. at 249, 100 S.Ct. at 2641-42.

Application of these factors, here, reveals that four of

them (1, 3, 5, and 6) support the civil nature of the

ordinances, two factors (2 and 7) are non-dispositive, and

only one (4) supports the ordinances as being criminal in

nature. Initially, an individual is not affirmatively restrained

or disabled by the temporary seizure of his or her

automobile. Further, a monetary fine is not an affirmative

restraint or disability. Van Harken, 906 F Supp. at 1191

(finding parking fine of $200 was not a restraint or

disability). Moreover, the ordinance does not specify any

required state of mind for violations. Thus, evidence of

scienter is not required.

+

+L

54a

Appendix D

Additionally, because Illinois has enacted statutes

criminalizing the same behavior (with substantial penalties

possible), it is clear that the City’s ordinances were not

designed to duplicate the criminal penalties for these

offenses. See, e.g., Controlled Substances Act, 720 ILL.

COMP. STAT. 570/100; 570/402 (West 1993 & Supp.1997)

(Class 1 Felony); Cannabis Control Act, 720 ILL. COMP.

STAT. 550/1, 550/4 (West 1993 & Supp.1997)(ranging

from Class C Misdemeanor to Class 3 Felony); Deadly

Weapons, 720 ILL. COMP. STAT. 5/24 (West 1993 &

Supp.1997) (Class A Misdemeanor for possessing firearm

in automobile); see also, Van Harken, 906 F.Supp. at 1192

(finding parallel criminal statute providing fines for parking

violations as petty offenses fails to demonstrate_that parking

fines are also criminal in nature).

Finally, “[w]hile every fine does have some retributive

and deterrent effects,” Van Harken, 906 F.Supp. at 1191,

there are alternative reasons for the City’s ordinances. For

example, § 8-20-015 encourages registration of handguns

and serves to regulate their transportation in highly

populated environments, and § 7-24-225 encourages

registration of controlled substances under state law. Thus,

the challenged fines cannot be reasonably labeled excessive

in relation to these alternative purposes.

Because the ordinances in question lack a historical

reference, they cannot be analyzed directly against the intent

and effect of former laws outlining the same violations.

However, an analogy can be drawn to traffic violations

which also involves vehicles, impoundment, and fines for

violations. Parking fines are not criminal in nature. See Van

55a

Appendix D

Harken, 103 F.3d at 1350. However, because financial

penalties have been imposed under both civil and criminal

statutes, (see, e.g., Bennett v. Spear, 516 U.S. 994, _,117

S.Ct. 1154, 1166, 137 L.Ed.2d 281 (1997) (Endangered

Species Act of 1973, 16 U.S.C. § 1540(a)-(b), provides for

both civil and criminal fines)), this factor favors neither

position.

Although the City’s ordinance arguably includes

punitive and deterrent elements, it is also remedial in nature.

While this factor, perhaps, best supports the argument that

the ordinance is criminal, it cannot overcome the combined

weight of the other factors.

In sum, analysis of the factors provided in Mendoza-

Martinez demonstrates that the fines imposed for possession

of an unregistered firearm or controlled substances in an

automobile, or for playing loud music on a car stereo,

are civil, not criminal, in nature. Accordingly, because

enforcing the City’s ordinances do not require criminal due

process protections, the ordinances and fines do not violate

the Substantive Due Process Clause of the Fourteenth

Amendment.

1. Mr. Amos’ Claims

Mr. Amos does not state a claim on which relief can be

granted. Mr. Amos fails to allege that the substance of

§ 11-4-1115, under which his hearing occurred, denied him

due process. His claims are dissimilar from Ms. Towers

and Mr. Sturdivant’s, because he does not allege that the

City’s ordinance precludes an innocent-owner defense, as

do the other challenged ordinances.

56a

Appendix D

Further, Mr. Amos misdirects his pleadings toward a

perceived substantive due process claim, which only

supports his contention that the officers who seized and

impounded his vehicle did so without probable cause.

Simply stated, Mr. Amos’ allegations concern only this

factual, evidentiary determination. Thus, Mr. Amos fails

to state a claim upon which relief can be granted, for

Fourteenth Amendment due process violations.

ii. Ms. Towers’ Claims

Ms. Towers fails to state a claim for substantive due

process violations under the Fourteenth Amendment. The

Court finds Bennis to be controlling here. Because civil

forfeiture actions need not supply an innocent-owner

defense to comport with the constitutional substantive due

process safeguards, the City’s ordinances do not violate Ms.

Towers’ right to due process. Thus, Ms. Towers fails to

state a claim upon which relief can be granted, for

Fourteenth Amendment due process violations.

ii. Mr. Sturdivant’s Claims

Likewise, Mr. Sturdivant has failed to state a claim upon

which relief can be granted. Mr. Sturdivant’s allegations

directly mirror those of Ms. Towers. Although his claims

do permit an inference that he intended to challenge the

statutes both facially and as applied to him in this instance,

the claims fail equally under either approach.

57a

Appendix D

2. Counts IV, V and XIII: Eighth Amendment

Excessive Fines Claims

The term “fine” denotes payments extracted by the

government, which are payable to the government. See

Browning-Ferris Indus. of Vermont, Inc. v. Kelco Disposal,

Inc., 492 U.S. 257, 265-66, 109 S.Ct. 2909, 2915-16, 106

L.Ed.2d 219 (1989) (finding Excessive Fines Clause was

intended to limit fines by the government, and not to limit

private civil damages). Eighth Amendment? protections

against excessive fines are not limited to criminal

proceedings; they also apply to civil proceedings. Austin,

509 U.S. at 607, 113 S.Ct. at 2804.

Plaintiffs assert claims under the Eighth Amendment,

contending that a $500 fine is unconstitutionally excessive

because it bears no relationship to their culpability as

innocent owners. To buttress their assertions, Plaintiffs

contend that two Supreme Court cases support this rationale.

(Pls.’ Resp., at 18-21 (citing Austin, 509 U.S. 602, 113 S.Ct.

2801, 125 L.Ed.2d 488; Alexander v. United States, 509

U.S. 544, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993)).) On

the other hand, the City contends that Bennis, 516 U.S. 442,

116 S.Ct. 994, 134 L.Ed.2d 68, controls, and this Court

agrees.

In Austin, the Supreme Court looked past the labels of

“criminal” and “civil” penalties to determine whether a civil

22. “Excessive bail shall not be required, nor excessive fines

imposed, nor cruel or unusual punishments inflicted.” U.S. CONST.

amend. VIII.

58a

Appendix D

in rem forfeiture procedure can constitute punishment.

Austin, 509 U.S. at 610, 113 S.Ct. at 2805-06. The Supreme

Court recognized, as it had before in United States v. Halper,

490 U.S. 435, 448, 109 S.Ct. 1892, 1901-02, 104 L.Ed.2d

487 (1989), that civil sanctions, in addition to serving

remedial purposes, can serve retributive and deterrent

purposes as well. Id. at 610, 113 S.Ct. at 2805-06. It is only

when a civil sanction serves either a retributive or deterrent

purpose, that it becomes, in part, punishment. Id. Thus, the

Supreme Court held that the Eighth Amendment applies to

civil in rem forfeiture proceedings only when those

proceedings contain retributive or deterrent elements. Id.

at 622, 113 S.Ct. at 2812.

In its analysis, the Supreme Court discussed the

evolution of civil in rem forfeiture actions and its historical

rejection of the innocent-owner defense in that context.

Austin, 509 U.S. at 615, 113 S.Ct. at 2808. In particular,

the Supreme Court stated that:

[FJorfeiture has been justified on two theories

— that the property itself is “guilty” of the

offense, and that the owner may be held

accountable for the wrongs of others to whom

he entrusts his property. Both theories rest, at

bottom, on the notion that the owner has been

negligent in allowing his property to be misused

and that he is properly punished for that

negligence.

id.

59a

Appendix D

In both Austin and Alexander, the plaintiffs were

convicted criminals, serving prison sentences. In Austin,

the government had, in addition to his criminal sentence of

seven years imprisonment (for possession of cocaine with

intent to deliver), sought and obtained a civil forfeiture of

the plaintiff's mobile home and budy shop. Id. at 604, 113

S.Ct. at 2803. In Alexander, the government had, in addition

to his criminal sentence of six years imprisonment and fine

of $100,000 (for tax evasion, obscenity offenses and RICO

violations), sought and won forfeiture of the plaintiffs

wholesale and retail business assets and $9 million.

Alexander, 509 U.S. at 548, 113 S.Ct. at 2769-70.

Because civil forfeitures against criminals must be

reviewed for excessiveness under Austin and Alexander,

Plaintiffs argue that the same should be done for innocent

owners who have committed no crimes. This argument,

however, ignores the principles laid out in Bennis

concerning the non-availability of an innocent-owner

defense in forfeiture proceedings. Unlike Bennis, neither

Austin nor Alexander promulgates any findings or rulings

on the innocent-owner defense. See Austin, 509 U.S. at 616

n. 10, 113 S.Ct. at 2809 n. 10 (noting “[bJecause the

forfeiture provisions at issue here exempt ‘innocent owners,’

we again have no occasion to decide in this case whether it

would comport with due process to forfeit the property of a

truly innocent owner.”). Moreover, the Supreme Court also

cautioned against relying on a mistaken technical distinction

between in rem and in personam proceedings. Austi::, 509

U.S. at 616, 113 S.Ct. at 2808-09. In sum, the Supreme

Court’s decision only holds that, forfeiture is a payment to

a sovereign as punishment, at least in part, for some offense,

60a

Appendix D

subject to the limitations established by the Eighth

Amendment’s Excessive Fines Clause. Id. at 622, 113 S.Ct.

at 2812.

Whether a fine is excessive is a question for this Court

to determine. Id.; Alexander, 509 U.S. at 559, 113 S.Ct. at

2775-76. The essential point of Plaintiffs’ claims is that

they lacked scienter; they were unaware of, and did not

authorize the use of, their vehicles for illegal purposes. If

the City’s ordinances required a finding of scienter,

Plaintiffs could state a claim. The ordinances, however, like

the one at issue in Bennis, do not require a showing of

scienter, making Plaintiffs allegations irrelevant.

In between the polar extremes of having property stolen,

and expressly consenting to use of the property for illegal

purposes, Plaintiffs find themselves in a conundrum. If they

did not consent to the use of their cars at all, it is reasonable

to presume that the cars had been stolen. The City’s

ordinances provide for such an event, by permitting victims

of theft to report their automobiles as stolen within

twenty-four hours from the time they discover the theft, or

reasonably should have discovered the theft. If the car is

not reported stolen, even if an owner does not expressly

consent to permit another to use his or her vehicle, the only

rational conclusion is that the owner gave at least some

degree of implied consent to that person to use the car, either

before or after its use. When an owner consents to release

control of his or her vehicle to another person, expressly or

otherwise, the owner also accepts the risks inherent to that

loss of control. See Harmony v. United States, 43 U.S. (2

How.) 210, 234, 11 L.Ed. 239 (1844) (holding that the

6la

Appendix D

offenses of the captain and crew bind the owner of a ship,

“whether he be innocent or guilty; and [the owner] impliedly

submits to whatever the law denounces as a forfeiture

attached to the ship by reason of their unlawful or wanton

wrongs.”).

Through this notion of attaching responsibility to one’s

property, the law endeavors to create “the desirable effect

of inducing [owners] to exercise greater care in transferring

possession of their property.” Calero-Toledo v. Pearson

Yacht Leasing Co., 416 U.S. 663, 688, 94 S.Ct. 2080, 2094,

40 L.Ed.2d 452 (1974). The durability of this concept is

evidence of the force of its rationale. Over one hundred

years ago, the Supreme Court stated:

[T]he unlawful acts of the [borrower] bind the

owner of the property, in respect to the

management of the same, as much as if they were

committed by the owner himself. Power to that

effect the law vests in him by virtue of his [loan];

and, if he abuses his trust, it is a matter to be

settled between him and his [borrower]; but the

acts of violation as to the penal consequences to

the property are to be considered just the same

as if they were the acts of the owner.

Dobbins’ Distillery v. United States, 96 U.S. 395, 404, 24

L.Ed. 637 (1877). The Court does not see any reason to

abandon this well-reasoned rationale under the

circumstances presented in the case sub judice.

Ms. Towers and Mr. Sturdivant state, in support of their

claims: that they have committed no crimes; did not consent

62a

Appendix D

to the use of their vehicles by another; did not consent and

were unaware that illegal drugs and/or firearms were present

in their automobiles; did not know, or should not have

reasonably known, that the occupant controlling their

vehicles possessed an illegal item. (Complaint, Count IV

at J 32; Count V at § 35.)” None of the plaintiffs allege that

their vehicles were stolen. Therefore, they have, in some

measure, consented to the use of their vehicles by another,

and the consequences thereof are “a matter to be settled

between [Plaintiffs] and [those who have used their

vehicles].” Dobbins’ Distillery, 96 U.S. at 404.

For the reasons set forth above, the Court finds that the

City’s fines are analogous to fines levied in civil in rem

forfeiture proceedings, and are not excessive under the

Eighth Amendment’s Excessive Fines Clause.

3. Counts VIII and IX: Fourth Amendment

Unreasonable Seizure Claims

Ms. Towers and Mr. Sturdivant assert that

impoundment of their vehicles constitutes an unreasonable

seizure under the Fourth Amendment.** The Fourth

23. Mr. Amos simply contends that he is innocent for he has

violated no state or federal law. (Complaint, Count XIII at J 30.)

He does not allege that he has been fined after availing himself of

his right to a final hearing. As such, he lacks standing to assert a

claim under the Eighth Amendment. See Simon v. Eastern

Kentucky Welfare Rights Org., 426 U.S. 26, 96 S.Ct. 1917, 48

L.Ed.2d 450 (1976) (holding federal courts must determine whether

a plaintiff has been injured in order to determine if he or she has

standing such that the court can exercise its jurisdiction).

24. Mr. Amos asserts no claims under the Fourth Amendment.

63a

Appendix D

Amendment prc 2s, in pertinent part, that the “right of

the people to be secure in their persons, houses, papers and

effects, against unreasonable searches and seizures, shall

not be violated. . . .” U.S. CONST. amend. IV.

A seizure of property occurs where “there is some

meaningful interference with an individual’s possessory

interests in that property.” United States v. Jacobsen, 466

U.S. 109, 113, 104'S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984).

The Fourth Amendment is applicable to state actors by

operation of the Fourteenth Amendment. Ker v. California,

374 U.S. 23, 30, 83 S.Ct. 1623, 1628, 10 L.Ed.2d 726

(1963). The Fourth Amendment’s protection also applies

to personal property in the civil context. Soldal v. Cook

County, Ill., 506 U.S. 56, 67, 113 S.Ct. 538, 546-47, 121

L.Ed.2d 450 (1992).

Courts have interpreted the Fourth Amendment to

require any seizure by the government to be reasonable

under any circumstances. See United States v. Cardona-

Sandoval, 6 F.3d 15, 23 (1st Cir.1993) (seizure of ship);

Conner v. City of Santa Ana, 897 F.2d 1487, 1492 (9th

Cir.), cert. denied, 498 U.S. 816, 111 S.Ct. 59, 112 L.Ed.2d

34 (1990) (seizure of junk cars); Soldal, 506 U.S. at 72,

113 S.Ct. at 549 (removal of mobile home). Under the

Fourth Amendment, “ ‘reasonableness is still the ultimate

standard’... .” Soldal, 506 U.S. at 71, 113 S.Ct. at 548-49

(quoting Camara v. Municipal Court of City and County of

San Francisco, 387 U.S. 523, 539, 87 S.Ct. 1727, 1736, 18

L.Ed.2d 930 (1967)).

In this case, Plaintiffs do not allege that the officers

impounding the vehicles acted unreasonably. Rather, they

64a

Appendix D

allege that the ordinances themselves, providing for the

seizure of their vehicles, are unreasonable. In particular,

neither Ms. Towers nor Mr. Sturdivant allege that the

officers lacked probable cause to seize their vehicles (which

contained illegal items). Rather, they contest the

constitutionality of the ordinances, because of their

application to innocent owners.

The test for whether a seizure is reasonable requires a

careful balance between governmental and private interests.

Soldal, 506 U.S. at 72, 113 S.Ct. at 549. In Soldal, the

Supreme Court set out a high hurdle for persons challenging

the reasonableness of a seizure. In that case, where officers

were executing the law pursuant to a court order, the

Supreme Court found that a showing of unreasonableness

would be a “laborious task indeed.” Id. In view of the fact

that an officer executes the law under an ordinance, just as

he or she would under a court order, the same standard of

reasonableness applies to the facts of the case at bar.

Because Plaintiffs have not stated a claim on which

relief can be granted with respect to their alleged

constitutional violations under § 1983, they have not

demonstrated that the ordinances are unreasonable.

Therefore, Plaintiffs have failed to state a claim upon which

relief can be granted under the Fourth Amendment.

4. Count XIV: Class Action Claim

Plaintiffs reallege all of the foregoing constitutional

challenges under a claim for class action. Because the

Plaintiffs’ claims, on which this proposed class action is

65a

Appendix D

based, fail to state a claim upon which relief could be

granted, this class action count also fails. Assuming,

arguendo, that Plaintiffs’ previous claims had survived,

Plaintiffs still fail to meet the requirements for certifying a

class, as addressed below.

II. Plaintiffs’ Motion to Certify Class

Plaintiffs seek certification of a plaintiff class under

Federal Rule of Civil Procedure 23.75 There is broad judicial

discretion in determining whether to allow the certification

of a class action. First Interstate Bank of Nevada, N.A. v.

Chapman & Cutler, 837 F.2d 775, 781 (7th Cir.1988)

(certification decision is committed to the sound discretion

of the court); McGarvey v. Citibank, No. 95 C 123, 1995

WL 404866, at *2 (N.D.IIl. July 5, 1995); see also 7B

CHARLES A. WRIGHT, ARTHUR R. MILLER, & MARY

KAY KANE, FEDERAL PRACTICE AND PROCEDURE,

25. Plaintiffs’ proposed class consists of registered owners

of automobiles, in the City of Chicago, whose vehicles have been

or will be impounded by the City, pursuant to Chicago Municipal

Code §§ 7-24-225 (unlawful drugs in moving vehicles), 8-20-015

(Unlawful firearm in motor vehicle), 11-4-115 (sound device

restrictions for excessive noise), 8-8-060 (prostitution or

solicitation), and 8-16-020 (curfew). Because none of the named

Plaintiffs has asserted claims concerning §§ 8-8-060 and 8-16-020,

they lack standing to bring claims on behalf of unnamed plaintiffs

affected by those sections.

Accordingly, the proposed class would be limited to owners

who: were precluded under the ordinances from pleading an

innocent-owner defense, had not violated any state or federal

criminal law, or activity proscribed by the remaining ordinances,

yet were forced to pay a fine nonetheless. (Pls.’ Mot. to Certify

Class, at 2.)

66a

Appendix D

CIVIL 2D § 1785, at 119 (1986). To obtain class

certification, plaintiffs must meet all of the requirements

of Rule 23. Patterson v. General Motors Corp., 631 F.2d

476, 480 (7th Cir.1980), cert. denied, 451 U.S. 914, 101

S.Ct. 1988, 68 L.Ed.2d 304 (1981). The burden of showing

that all of the demanding requirements of Rule 23 have been

satisfied, thereby demonstrating that certification is proper,

rests with the plaintiff. See General Telephone Co. of

Southwest v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364,

2372-73, 72 L.Ed.2d 740 (1982); Trotter v. Klincar, 748

F.2d 1177, 1184 (7th Cir.1984); Riordan v. Smith Barney,

113 F.R.D. 60, 62 (N.D.II1.1986).

Rule 23 establishes a two-step procedure to determine

whether a class action is appropriate. See In re Bally Mfg.

Sec. Corp. Litig., 141 F.R.D. 262, 266 (N.D.II1.1992).

Initially, the preliminary requirements set forth in Rule 23(a)

must be met:

(1) the class is so numerous that joinder of all

members is impracticable, (2) there are questions

of law or fact common to the class, (3) the claims

or defenses of the representative parties are

typical of the claims or defenses of the class, and

(4) the representative parties will fairly and

adequately protect the interests of the class.

If these criteria are satisfied, the Court then considers

whether the action falls within any of the three categories

of class suits provided for in the subsection of Rule 23(b).”°

26. Here, Plaintiffs seek class certification under Rules

23(b)(2) and 23(b)(3). Under Rule 23(b)(2), once the class fulfills

(Cont'd)

67a

Appendix D

Here, Plaintiffs fail to satisfy the numerosity

requirement of Rule 23(a)(1). The court may find

numerosity under Rule 23(a)(1) if the class is so numerous

that joinder of all members of the class is impracticable.

Plaintiffs are not required to specify an exact number in

order to satisfy the requirement. Vergara v. Hampton, 581

F.2d 1281, 1284 (7th Cir.1978), cert. denied, 441 U.S. 905,

99 S.Ct. 1993, 60 L.Ed.2d 373 (1979). However, that does

not mean that Plaintiffs can rely on a conclusory allegation

that joinder is impracticable or on speculation as to the size

of the class to prove the numerosity requirement. Marcial

v. Coronet Ins. Co., 880 F.2d 954, 957 (7th Cir.1989);

Patterson, 631 F.2d at 481; Valentino v. Howlett, 528 F.2d

975, 978 (7th Cir.1976).

Plaintiffs have made only conclusory allegations on the

impossibility of joinder. These conclusions are based on

their speculation that the proposed class is “extremely

large,” numbering potentially “hundreds, perhaps

thousands” of members. (Pls.’ Mem. in Supp. of Mot. to

Certify Class, at 8-9.) Absent from Plaintiffs’ motion or

memorandum is any support for these figures. Plaintiffs

argue that, common sense assumptions support a finding

of numerosity where the class consists of a thousand or more

members, and that the Court may make a good faith estimate

as to the size of the proposed class. (Id., citing Grossman

v. Waste Management Inc., 100 F.R.D. 781, 785

(Cont’d)

the threshold requirements, the court must then determine whether

the defendant acted on grounds applicable to the class as a whole.

Under Rule 23(b)(3), the court must determine whether a class

action is “superior” to other methods of adjudication.

Ra

Appendix D

(N.D.I11.1984); In re VMS Sec. Litig., 136 F.R.D. 466, 473

(N.D.I11.1991); Gomez v. State Bd. of Educ., 117 F.R.D.

394, 399 (N.D.II1.1987).)

While it is likely that hundreds or thousands of

registered owners of motor vehicles appear before the City’s

hearing officers due to alleged violations of the challenged

ordinances, Plaintiffs present no evidence that would permit

this Court to infer that a sufficient number of these persons

are “innocent-owners” — as described by the Plaintiffs —

such that the requirements of Rule 23(a)(1) would be

satisfied. See, e.g., Gomez, 117 F.R.D. at 399 (certifying

class where statistics permitted court to draw reasonable

conclusion of numerosity despite objections as to the

reliability and accuracy of the statistics). Having been

presented with only a large pool of persons within which a

class may or may not exist, without more, the Court may

not reason, in good faith, that numerosity has been

met. See Jackson v. Harris, 84 F.R.D. 602, 605-06,

(N.D.Ind. 1979) (denying class certification where large pool

of social security recipients did not justify any inference

that they were affected by the challenged social security

regulation).

The Court is sympathetic to Plaintiffs’ argument that

pursuing these individual claims is cost-prohibitive to

potential class members. (Pls.” Mem. in Supp. of Mot. to

Certify Class, at 10.) However, that argument does not cause

the Court to reach an inference that numerosity has been

met.

The Court need not, therefore, discuss “commonality,”

“typicality,” or “adequacy of representation,” and, likewise,

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Appendix D

does not reach the second step of the class certification

analysis. For the foregoing reasons, Plaintiffs motion for

Class certification is denied.

III. Plaintiffs’ Motion for Injunctive Relief

A motion for preliminary injunctive relief is properly

brought under Federal Rule of Civil Procedure 65. Although

the Seventh Circuit has stated the test in various ways, to

prevail on a motion for preliminary injunction, the movant

must initially demonstrate three threshold requirements.

Storck USA, L.P. v. Farley Candy Co., 14 F.3d 311, 313-14

(7th Cir.1994). The movant must show that: (1) the case

has some likelihood of success on the merits;2” (2) there

exists no adequate remedy at law;”* and (3) the movant will

suffer irreparable harm if the preliminary injunction is not

granted. Id. If these conditions are met, the initial threshold

has been cleared and the Court must next: (1) balance the

harm to the movant if the injunction is not issued, against

the harm to the defendant if it is issued improvidently;?

27. In determining the likelihood of success on the merits,

the court must at least find that the petitioner’s chances are “better

than negligible”. Kinney v. International Union of Operating

Eng’rs, Local 150, 994 F.2d 1271, 1278 (7th Cir. 1993).

28. Lack of an adequate remedy at law ordinarily means that

money damages would not suffice. American Medicorp, Inc. v.

Continental Illinois Nat’! Bank and Trust Co. of Chicago, 475

F.Supp. 5, 7 (N.D.II1.1977).

29. The balancing requires a “sliding scale” analysis wherein

“the greater the movant’s chance of success on the merits, the less

strong a showing it must make that the balance of harms is in its

favor.” Storck, 14 F.3d at 314.

70a

Appendix D

and (2) after weighing the interest of the parties, additionally

consider the public interest (i.e. non-parties) consequences

of either a grant or denial of the injunction.” Id.

Because Plaintiffs have failed to satisfy the criteria

necessary to certify a class, any request for injunctive relief

must be analyzed as applied to the individual movants.

Coleman, 40 F.3d at 259. Without proof of an impending

injury similar to the one allegedly already suffered, equitable

relief is not available to a plaintiff absent some live

controversy. City of Los Angeles v. Lyons, 461 U.S. 95,

105, 103 S.Ct. 1660, 1666-67, 75 L.Ed.2d 675 (1983).

Further, a plaintiff may not speculate or hypothesize a claim

of future injury to gain standing to effectively assert a claim

for equitable relief. Palmer v. City of Chicago, 755 F.2d

560, 572 n. 9 (7th Cir.1985), cert. denied, 481 U.S. 1049,

107 S.Ct. 2180, 95 L.Ed.2d 836 (1987); see also Shipman

v. Missouri Dep’t of Family Servs., 877 F.2d 678, 681 (8th

Cir.1989), cert. denied, 493 U.S. 1045, 110 S.Ct. 842, 107

L.Ed.2d 837 (1990).

In this case, none of the Plaintiffs has produced any

evidence, or even alleged, that the City is likely to seize

their vehicles in the future. Therefore, each individual

Plaintiff lacks standing to request injunctive relief because

each has failed to satisfy his or her burden of proof.

30. The public interest factor is not dispositive. Abbott Labs.

v. Mead Johnson & Co., 971 F.2d 6, 12 n. 3 (7th Cir.1992). Thus,

for example, where a movant clears the threshold and shows that

the balance of harms tip significantly in his favor, preliminary

injunctive relief is proper even though it might slightly impair the

public interest. .

Tla

Appendix D

Even if, arguendo, the proposed class had been certified,

Plaintiffs still fail to meet the preliminary threshold

requirements for a class action. First, as discussed above,

Plaintiffs have failed to state a claim on which relief can be

granted. Therefore, there is no likelihood of success on the

merits. Kinney, 994 F.2d at 1278. Second, Plaintiffs have

alleged no damages other than fines, towing and storage

fees, and monetary damages associated with the loss of their

vehicles for a temporary period. Because money damages

would suffice in this instance, Plaintiffs have an adequate

remedy at law. American Medicorp, 475 F.Supp. at 7.

Likewise, Plaintiffs have failed to allege that they would

suffer any irreparable harm.

Therefore, Plaintiffs fail to clear the threshold

requirements for a preliminary injunction, and their Motion

for Injunctive Relief is, therefore, denied.

CONCLUSION

For the foregoing reasons, Plaintiffs have failed to state

a claim upon which relief can be granted.

IT IS THEREFORE ORDERED that:

Defendant’s Motion to Dismiss be, and the same hereby

is, GRANTED.

IT IS FURTHER ORDERED that:

Plaintiffs’ Motion to Certify Class, and Plaintiffs’

Motion for Preliminary Injunctive Relief be, and the same

hereby are, DENIED.

72a

APPENDIX E — JUDGMENT OF THE UNITED

STATES DISTRICT COURT FOR THE NORTHERN

DISTRICT OF ILLINOIS, EASTERN DIVISION

DATED SEPTEMBER 30, 1997

United States District Court

Northern District of Illinois

Eastern Division

Case Number: 96 C 6510

Sandra Towers, et al

v.

City of Chicago

JUDGMENT IN A CIVIL CASE

* * *

@ Decision by Court. This action came to trial or hearing

before the Court. The issues have been tried or heard

and a decision has been rendered.

IT IS ORDERED AND ADJUDGED that Plaintiffs’ Motion

to Certify Class and Plaintiffs’ Motion for Preliminary

Injunction are denied. Defendant’s Motion to Dismiss is

granted.

Michael W. Dobbins, Clerk of Court

Date: 9/30/97 s/ Vernita K. Davis

Vernita K. Davis, Deputy Clerk

73a

APPENDIX F — RELEVANT STATUTES

AND ORDINANCES

Chicago Municipal Code § 7-24-225

Unlawful drugs in motor vehicle

Impoundment.

(a) The owner of record of any motor

vehicle that contains any controlled substance

or cannabis, as defined in the Controlled

Substances Act, 720 ILCS 570/100, et seq., and

the Cannabis Control Act, 720 ILCS 550/1, et

seq., or that is used in the purchase, attempt to

purchase, sale, or attempt to sell such controlled

substances or cannabis shall be liable to the city

for an administrative penalty of $500.00 plus any

applicable towing and storage fees. Any such

vehicle shall be subject to seizure and

impoundment pursuant to this section. This

subsection shall not apply: (1) if the vehicle used

in the violation was stolen at the time and the

theft was reported to the appropriate police

authorities within 24 hours after the theft was

discovered or reasonably should have been

discovered; (2) if the vehicle is operating as a

common carrier and the violation occurs without

the knowledge of the person in control of the

vehicle; or (3) if the owner proves that the

presence of the controlled substance or cannabis

was authorized under the Controlled Substances

Act or the Cannabis Control Act.

(b) Whenever a police officer has probable

cause to believe that a vehicle is subject to

74a

Appendix F

seizure and impoundment pursuant to this

section, the police officer shall provide for the

towing of the vehicle to a facility controlled by

the city or its agent. When the vehicle is towed,

the police officer shall notify any person

identifying himself as the owner of the vehicle

or person who is found to be in control of the

vehicle at the time of the alleged violation, if

there is such a person, of the fact of the seizure

and of the vehicle owner’s right to request a

preliminary hearing to be conducted under this

section.

(c) A hearing officer of the city shall

conduct a preliminary hearing within 24 hours

after the seizure, unless the Department of Police

determines that it must retain custody of the

vehicle under applicable state or federal

forfeiture law. All interested persons shall be

given a reasonable opportunity to be heard at the

preliminary hearing. The formal rules of

evidence will not apply at the hearing, and

hearsay evidence shall be admissible. If, after

the hearing, the hearing officer determines that

there is probable cause to believe that the vehicle

is subject to impoundment and seizure under

subsection (a) of this section, the hearing officer

shall order the continued impoundment of the

vehicle as provided in this section unless the

owner of the vehicle posts with the city a cash

bond in the amount of $500.00 plus the

accumulated costs of towing and storing. If the

75a

Appendix F

hearing officer determines that there is no such

probable cause, the vehicle will be returned

without penalty or other fees.

(d) Within 10 days after a vehicle is seized

and impounded pursuant to this section, the city

shall notify by certified mail, return receipt

requested, the owner of record of the date, time

and location of a hearing that will be conducted

pursuant to this section. The hearing shall be

scheduled and held, unless continued by order

of the hearing officer, no later than 30 days after

the vehicle was seized. All interested persons

shall be given a reasonable opportunity to be

heard at the hearing. If, after the hearing, the

hearing officer determines by a preponderance

of evidence that the vehicle was used in the

manner set forth in subsection (a), and that none

of the exceptions described in clauses (1) through

(3) of subsection (a) applies, then the hearing

officer shall enter an order finding the owner of

record of the vehicle civilly liable to the city for

an administrative penalty in the amount of

$500.00, plus towing and storage costs. If the

hearing officer finds that no such violation

occurred, the hearing officer shall order (1) the

immediate return of any cash bond posted, or (2)

where the vehicle is in the city’s possession, the

return of such vehicle, except that no vehicle

shall be returned to the owner of record unless

and until the city receives notice from the

appropriate state or, where applicable, federal

76a

Appendix F

officials that (i) forfeiture proceedings will not

be instituted, or (ii) forfeiture proceedings have

concluded and there is a settlement or a court

order providing that the vehicle shall be returned

to the owner of record.

(e) If an administrative penalty is imposed

pursuant to this section, such penalty shall

constitute a debt due and owing to the city. The

record owner’s obligation to pay such debt to

the city shall be independent of the city’s return

of any impounded vehicle. If a cash bond has

been posted pursuant to this section, the bond

shall be applied to the penalty, except as provided

otherwise in this section, an impounded vehicle

shall be returned to the record owner, or other

person who is legally entitled to possess the

vehicle, upon his or her payment to the city of

the penalty, plus any applicable towing and

storage fees, unless the vehicle has been sold or

otherwise disposed of to satisfy a judgment

or enforce a lien as provided by law.

Notwithstanding any other provision of this

section, no vehicle shall be returned to the record

owner unless and until the city has received

notice from the appropriate state or, where

applicable, federal officials that (i) forfeiture

proceedings have concluded and there is a

settlement or court order providing that the

vehicle shall be returned to the owner of record.

(f) Any motor vehicle that is not reclaimed

within 30 days after the expiration of the time

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during which the owner of record may seek

judicial review of the city’s action under this

section, or the time at which a final judgment is

rendered in favor of the city, or the time a final

administrative decision is rendered against an

owner of record who is in default, may be

disposed of as an unclaimed vehicle as provided

by law; provided, however, that where

proceedings have been instituted under state or

federal drug asset forfeiture laws, the subject

vehicle may not be disposed of by the city except

is consistent with those proceedings. Where the

vehicle is sold by the city and the proceeds from

the sale are greater than the amount due the city

in penalty and towing and storage costs, then the

owner of record may obtain those net proceeds

by filing a claim with the city.

(g) As used in this section, the “owner of

record” of a vehicle means the record title holder.

(h) Fees for towing and storage of a vehicle

under this section shall be the same as those

charged pursuant to Chapter 9-96 of this code.

(Added. Coun. J. 3-9-95, p. 66176)

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Appendix F

Chicago Municipal Code § 8-20-015

Unlawful firearm in motor vehicle

(a) The owner of record of any motor

vehicle that contains an unregistered firearm or

a firearm that is not broken down in a

nonfunctioning state shall be liable to the city

for an administrative penalty of $500.00 plus any

towing and storage fees applicable under Section

9-92-080. Any such vehicle shall be subject to

seizure and impoundment pursuant to this

section. This subsection shall not apply: (1) If

the vehicle used in the violation was stolen at

that time and the theft was reported to the

appropriate police authorities within 24 hours

after the theft was discovered or reasonably

should have been discovered; (2) if the vehicle

is operating as a common carrier and the

violation occurs without the knowledge of the

person in control of the vehicle; or (3) if the

owner proves that the presence of the firearm

was permissible pursuant to paragraphs (1)

through (10) Section 8-20-010 or, in the case of

an unregistered firearm, was exempt from

registration under subsection (b) of Section 8-

20-040.

(b) Whenever a police officer has probable

cause to believe that a vehicle is subject to

seizure and impoundment pursuant to this

section, the police officer shall provide for the

towing of the vehicle to a facility controlled by

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Appendix F

the city or its agents. Before or at the time the

vehicle is towed, the police officer shall notify

any person identifying himself as the owner of

the vehicle or any person who is found to be in

control of the vehicle at the time of the alleged

violation, of the fact of the seizure and of the

vehicle owner’s right to request a vehicle

impoundment hearing to be conducted under this

section.

(c) Whenever the owner of record of a

vehicle seized pursuant to this section makes a

request of the department of revenue in person

and in writing for a vehicle impoundment hearing

within 12 hours after the seizure, a hearing

officer of the department of revenue shall

conduct the vehicle impoundment hearing within

24 hours after the seizure, excluding Sundays and

legal holidays. All interested persons shall be

given a reasonable opportunity to be heard at the

vehicle impoundment hearing. The formal rules

of evidence will not apply at the hearing, and

hearsay evidence shall be admissible. If, after

the hearing, the hearing officer determines that

there is probable cause to believe that the vehicle

is subject to seizure and impoundment under

subsection (a), the hearing officer shall order the

continued impoundment of the vehicle as

provided in this section unless the owner of the

vehicle posts with the department of revenue a

cash bond in the amount of $500.00 plus any

applicable towing and storage fees.

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Appendix F

(d) Within 10 days after a vehicle is seized

and impounded pursuant to this section, the city

shall notify by certified mail, return receipt

requested, the owner of record of the date, time

and location of a hearing that will be conducted

pursuant to this section. The hearing shall be

scheduled and held, unless continued by order

of the hearing officer, no later than 30 days after

the vehicle was seized. The hearing shall be

conducted by a hearing officer of the department

of revenue. All interested persons shall be given

a reasonable opportunity to be heard at the

hearing. If, after the hearing, the hearing officer

determines by a preponderance of evidence that

the vehicle contained an unregistered firearm or

a firearm not broken down in a nonfunctioning

state, and that none of the exceptions described

in clauses (1) through (3) of subsection (a)

applies, the hearing officer shall enter an order

finding the owner of record of the vehicle civilly

liable to the city for an administrative penalty in

the amount of $500.00. If the owner of record

fails to appear at the hearing, the hearing officer

shall enter a default order in favor of the city

requiring the payment to the city of an

administrative penalty in the amount of $500.00.

If the hearing officer finds that no such violation

occurred, the hearing officer shall order the

immediate return of the owner’s vehicle or cash

bond.

(e) If an administrative penalty is imposed

pursuant to this section, such penalty shall

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Appendix F

constitute a debt due and owing to the city. Ifa

cash bond has been posted pursuant to this

section, the bond shall be applied to the penalty.

If a vehicle has been impounded when such a

penalty is imposed the city may seek to obtain a

judgment on the debt and enforce such judgment

against the vehicle as provided by law. Except

as provided otherwise in this section the vehicle

shall continue to be impounded until (1) the

penalty, plus any applicable towing and storage

fees, is paid to the city, in which case possession

of the vehicle shall be given to the person who

is legally entitled to possess the vehicle, or (2)

the vehicle is sold or otherwise disposed of to

satisfy a judgment or enforce a lien as provided

by law. If the administrative penalty and

applicable fees are not paid within 30 days after

an administrative penalty is imposed under

subsection (d) against an owner of record who

defaults by failing to appear at the hearing, the

vehicle shall be deemed unclaimed and shall be

disposed of in the manner provided by law for

the disposition of unclaimed vehicles. In all other

cases, if the administrative penalty and

applicable fees are not paid within 30 days after

the expiration of time at which administrative

review of the hearing officer’s determination

may be sought, or within 30 days after an action

seeking, administrative review has been resolved

in favor of the city, whichever is applicable, the

vehicle shall be deemed unclaimed and shall be

disposed of in the manner provided by law for

the disposition of unclaimed vehicles.

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Appendix F

Except as otherwise specifically provided by law, no

owner, lienholder or other person shall be legally entitled

to take possession of a vehicle impounded under this section

until the civil penalty and fees applicable under this section

have been paid. However, whenever a person with a lien of

record against an impounded vehicle has commenced

foreclosure proceedings, possession of the vehicle shall be

given to that person if he or she agrees in writing to refund

to the city the amount of the net proceeds of any foreclosure

sale, less any amounts required to pay all lienholders of

record, up to $500.00 plus the applicable fees.

(f) For purposes of this section, the “owner

of record” of a vehicle is the record title holder.

(Added. Coun. J. 7-7-92, p. 19196; Amend.

7-14-93, p. 35530)

* ” * *