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GRANT v. CITY OF CHICAGO
October 3, 1984
BONNIE LEE GRANT AND ANDREA BARRON, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
CITY OF CHICAGO, A MUNICIPAL CORPORATION; FRED RICE, INDIVIDUALLY AND IN HIS CAPACITY AS THE ACTING SUPERINTENDENT OF THE CHICAGO POLICE DEPARTMENT; AND LESTER S. DICKINSON, INDIVIDUALLY AND IN HIS CAPACITY AS ACTING COMMISSIONER OF STREETS AND SANITATION FOR THE CITY OF CHICAGO, DEFENDANTS.
The opinion of the court was delivered by: Aspen, District Judge:
MEMORANDUM OPINION AND ORDER
Plaintiffs Bonnie Lee Grant ("Grant") and Andrea Barron
("Barron"), on behalf of themselves and others similarly
situated,*fn1 bring this action under 42 U.S.C. § 1983 to
challenge the constitutionality of Paragraph 27-435 of the
Municipal Code of Chicago, which authorizes the immobilization
of a motor vehicle when there are ten or more outstanding
traffic violation notices pending against the vehicle's
owner.*fn2 Plaintiffs allege that this ordinance
violates the due process and equal protection clauses of the
Fourteenth Amendment,*fn3 the Fourth Amendment*fn4 and the
bill of attainder and ex post facto clauses of Article 1,
§ 10*fn5 of the United States Constitution. Presently before
the Court is the defendants' motion to dismiss all the claims
under Fed.R.Civ.P. 12(b)(6) and to dismiss Grant for lack of
standing*fn6 and plaintiffs' motion for partial summary
judgment on their due process claim.*fn7 For the reasons set
forth below, both parties' motions are granted in part and
denied in part.
The immobilization device used by the City is commonly
referred to as a "boot" or "Denver boot." When the boot is
attached to the wheel of a vehicle, the vehicle cannot be
moved. The boot cannot be removed without damaging the
vehicle, except by a special mechanism controlled and owned by
the City. The City of Chicago, through its sanitation
department, has begun to place boots on vehicles which have
ten or more outstanding tickets, under the authority of
Paragraph 27-435 of the Municipal Code. To have the boot
removed, the vehicle owner ("owner") must pay all fines for
the outstanding traffic violations or post bond to secure his
appearance in the Circuit Court to contest the violations. In
either case, the owner must pay a boot fee of $35. If the
owner does not contact the City to have the boot removed
within forty-eight hours, the vehicle is towed. To obtain
release of a vehicle after it has been towed, the owner must
pay a towing fee of $45 as well as the boot fee and all fines
for the traffic violations or a bond to secure an appearance
to contest the violations. An
owner is entitled to a post-immobilization hearing to
determine the validity*fn8 of the booting. The hearing is
available within two working days of the request for a
Plaintiff Barron found her car immobilized by the boot after
she had received and failed to respond to 59 traffic tickets.
Barron sues on behalf of all similarly situated plaintiffs who
have had their vehicles booted. Plaintiff Grant has ten
outstanding violations and is subject to having her car booted
in the future. She sues on behalf of all plaintiffs who have
ten outstanding violations and are therefore threatened with
the immobilization of their vehicles by the boot.
Defendants claim that Grant lacks standing to bring this
action because she has failed to allege that her car has
actually been immobilized by the boot. A plaintiff can only
invoke federal court jurisdiction if he or she has suffered
"some threatened or actual injury resulting from the putatively
illegal action." Linda R.S. v. Richard D., 410 U.S. 614, 617,
93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973) (emphasis added).
Grant has alleged a threatened injury. "For purposes of
ruling on a motion to dismiss for want of standing, both the
trial and reviewing courts must accept as true all material
allegations of the complaint, and must construe the complaint
in favor of the complaining party." Warth v. Seldin,
422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975). Grant has
ten outstanding violations issued by the City of Chicago and
thus her car may be booted at any time. If the City ordinance
is constitutionally infirm as alleged, she is subject to
possible injury by its application to her. Defendants' motion
to dismiss Grant for lack of standing is therefore denied.
The due process clause of the Fourteenth Amendment ensures
that no party will be deprived of property without notice and
an opportunity to be heard at a meaningful time and in a
meaningful manner. Fuentes v. Shevin, 407 U.S. 67, 80, 92 S.Ct.
1983, 1994, 32 L.Ed.2d 556 (1971); Armstrong v. Manzo,
380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). The
Fourteenth Amendment protection of property has been broadly
extended to "any significant property interest." Boddie v.
Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 786, 28 L.Ed.2d
113 (1971). It is undisputed that the uninterrupted use of
one's vehicle is a substantial property interest, and that
before the "local government may so interrupt its use, the
owner is entitled to due process." Graff v. Nicholl,
370 F. Supp. 974, 981 (N.D.Ill. 1974); see also Bell v. Burson,
402 U.S. 535, 539, 91 S.Ct. 1586, 1589, 29 L.Ed.2d 90 (1971);
Sutton v. City of Milwaukee, 672 F.2d 644, 645 (7th Cir. 1982).
The issue before the Court is whether the procedure
currently followed by the City when it boots a vehicle
satisfies the basic due process requirements. What is due
process varies from case to case. "Due process is an amorphous
concept of less than facile application. There are no rigid or
universal rules determining what constitutes procedural due
process. Indeed, the dictates of that flexible concept vary
substantially depending upon the nature of the proceedings."
Duby v. American College of Surgeons, 468 F.2d 364, 368 (7th
Cir. 1972) (citations omitted). Therefore, although it is
necessary to afford some process to a person whose vehicle is
booted, there is no specific process which must be followed.
A. Pre-deprivation hearing
Plaintiffs allege that due process requires a hearing before
deprivation of property absent "extraordinary circumstances."
Boddie v. Connecitcut, 401 U.S. at 378-379, 91 S.Ct. at 786.
However, the test commonly used today to determine what process
is necessary, first stated in Mathews v. Eldridge,
424 U.S. 319, 96 S.Ct. 893,
47 L.Ed.2d 18 (1976), does not center on the existence of
extraordinary circumstances. The Supreme Court, in concluding
that no pre-deprivation hearing was required in
Mathews, considered three factors for determining whether due
process had been afforded. These three factors are:
First, the private interest that will be affected
by the official action; second, the risk of an
erroneous deprivation of such interest through
the procedures used, and the probable value, if
any, of additional or substitute procedural
safeguards; and finally, the Government's
interest, including the function involved and the
fiscal and ...