# Appendix — Towers v. City of Chicago

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1999
- **Citation:** 528 U.S. 874

## Text

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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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Appendix A

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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Appendix A

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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Appendix A

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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Appendix A

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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Appendix A

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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Appendix A

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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Appendix A

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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Appendix A

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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Appendix A

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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Appendix A

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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Appendix A

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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Appendix A

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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Appendix A

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,

69a

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

77a
Appendix F

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0603%3A2. Public record. Not legal advice.