In enacting the Anti-Solicitation Ordinance, the City also wanted to prevent livery operators from harassing travelers arriving at O'Hare. Id. Because of the exclusive grant to Continental and the close regulation of the bus service, the service does not present the harassment problem that hundreds of individual liveries present.
Thus, not only have the plaintiffs failed to provide any evidence showing that it is irrational to treat the buses and liveries differently, but the undisputed facts before us support the contrary proposition. Because of the characteristics of Continental's bus service described above, it is rational to conclude that Continental's operation presents much less of a regulatory concern than the livery services. Therefore, the City has sufficient reason to regulate Continental without the restrictions placed on liveries by the Anti-Solicitation Ordinance. Therefore, summary judgment in favor of the City is warranted on this claim.
C. Commerce Clause (Count IX)
Plaintiffs next claim that the Ordinances interfere with their pre-arranged fares in violation of the Inter-state Commerce Clause.
In Mustfov I, 663 F. Supp. at 1278-79, we determined that nonpre-arranged fares do not come within the purview of interstate commerce, Evanston Cab Co. v. City of Chicago, 325 F.2d 907 (7th Cir. 1963), cert. denied, 377 U.S. 943, 84 S. Ct. 1349, 12 L. Ed. 2d 306 (1964). Therefore, the plaintiffs' claim is barred insofar as it seeks to invalidate the ordinances because the ordinances prohibit the plaintiffs from soliciting customers at the airports and prevent the plaintiffs from conveying passengers between destinations within the City. We further determined, however, that regulations affecting pre-arranged livery fares present the potential for interference with interstate commerce and that municipal conduct in enforcing those regulations may rise to the level of an impermissible infringement on interstate commerce. Mustfov I, 663 F. Supp. at 1279.
There is some debate between the parties as to whether the plaintiffs have satisfactorily established that they were in fact involved in interstate commerce. We need not resolve that issue, however, since the plaintiffs' Commerce Clause claim falls on other grounds. Even assuming that the plaintiffs' pre-arranged fares were part of interstate commerce, the plaintiffs have failed to show how either the ordinances or their enforcement unconstitutionally interfere with interstate commerce.
First, the plaintiffs challenge the facial validity of the ordinances. Yet no provision in either of the ordinances prohibits pre-arranged trips to or from points outside of Illinois. Thus, there is nothing inherently wrong with the regulations.
Second, in response to the City's motion for summary judgment, the plaintiffs assert that there have been occasions when pre-arranged fares picked up at O'Hare to be dropped off in another state were interrupted by the arrest of a plaintiff driver. Based on that allegation, the plaintiffs claim that interstate commerce has been impermissibly impeded. Yet, the plaintiffs have provided absolutely no evidence that arrests under such circumstances ever occurred. The exhibits to which the plaintiffs cite, P.Exs. 3, 7 and 18, indicate (1) that the plaintiffs were arrested when they were transporting pre-arranged passengers within the City limits and (2) that, on occasion, certain of the plaintiffs transported pre-arranged passengers out of state. There is nothing in the sworn depositions that even suggests that a correlation exists between the two facts.
Alternatively, in their own motion for summary judgment, the plaintiffs further claim that the ordinances deprive pre-arranged fares from completing their interstate travel from other states into Illinois by preventing them from being picked up at O'Hare Field and being dropped of at destinations within the City of Chicago. Here too, however, the plaintiffs have failed to offer any evidence that such a deprivation has ever occurred. Moreover, there is no evidence that suggests that these passengers have had, or would have, any difficulty prearranging fares for destinations within the City with the hundreds of liveries duly licensed by the City for interurban transportation.
Finally, the plaintiffs seem to suggest that the enforcement of these ordinances violates the Interstate Commerce Clause because, while arrested and detained, they are unable to transport out-of-state passengers. Even assuming there have been occasions when a passenger's nonpre-arranged trip out of state has been interrupted because of his driver's arrest under the Anti-Solicitation Ordinance, or even when an out-of-town passenger's pre-arranged trip within the City has been interrupted because of his suburban driver's arrest under the Interurban Operations Ordinance, such interruptions would have been occasioned by the unlawful conduct of the livery operators in accepting these fares against the clear prohibitions of the ordinances. Simply because a driver may be transporting passengers within the stream of interstate commerce does not immunize him from a neutral state law which effectuates a legitimate local public interest and the effects of which on interstate commerce are matched by its benefits. See Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S. Ct. 844, 847, 25 L. Ed. 2d 174 (1970). Accordingly, we grant summary judgment in favor of the City on this claim.
V. License Claim (Count VI)
The plaintiffs' next claim is a constitutional challenge to the City's right to issue only 520 livery licenses. The plaintiffs have neither moved for summary judgment, nor have they responded in any way to the City's motion for summary judgment on this issue. Thus, whether styled as a substantive due process or equal protection claim, the plaintiffs have failed even minimally to adduce any facts that might suggest that the City has no rational basis for this act of livery regulation. See Mustfov I, 663 F. Supp. at 1255. Moreover, by virtue of their failure to respond to the City's Rule 12(m) statement, the plaintiffs have admitted the contrary -- namely, that the City has a legitimate interest in regulating liveries, and that it would be impractical for the City to effectively regulate a significantly larger number of liveries than the presently authorized 520. The plaintiffs have further admitted that the City does not distribute the licenses arbitrarily or discriminatorily. Therefore, the City has established a rational basis for the regulation and is entitled to summary judgment in their favor on this claim.
VI. Sign Claim (Count XII)
The City has also moved for summary judgment on the plaintiff's "Sign Claim." The City maintains, as a service to the public, four boards at O'Hare ("signs") which list various livery companies and their phone numbers. The City places on the signs any bona fide livery company that requests to be listed. The plaintiffs claim that Neb Tarailo's name (or that of his livery company) has been removed from the signs without due process. Although this claim is brought by all of the plaintiffs, we observe that since the alleged removal of only Tarailo's name is at issue, only he has standing to maintain a claim that he has been intentionally deprived of a protectible property interest in the alleged listing. Nevertheless, Tarailo has failed to establish a due process violation.
We first point out that there is no evidence in the record before us showing that Tarailo ever requested having his name placed on the list, that his name actually appeared on the list, or that his name is no longer on the list having been removed. Thus there is no factual basis that the deprivation about which Tarailo complains ever occurred.
Assuming that his name was in fact removed, Tarailo has nevertheless failed to provide any evidence that he possessed a valid protectible property interest in having his name kept on the list. The signs are offered as a service to the public, not the livery companies. No ordinance or enactment confers the right to be listed on the signs. Compare Baja Contractors, Inc. v. City of Chicago, 830 F.2d 667 (7th Cir. 1987), cert. denied, 485 U.S. 993, 108 S. Ct. 1301, 99 L. Ed. 2d 511 (1988) (contractor showed reasonable likelihood of establishing a property interest in minority business certification because the City had already conferred that benefit upon it in accordance with federal law and Executive Order of the Mayor). Thus, at best, all that Tarailo possessed was unilateral expectation that his name would be placed on the list and not removed. Such an expectation does not give rise to a property interest. See Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972).
Furthermore, even assuming he did have a property interest in having his name kept on the list, the evidence is unrefuted that the City has never intentionally removed the name of any bona fide livery company.
A negligent or erroneous removal of Tarailo's name, even if shown, would not amount to a due process violation. Daniels v. Williams, 474 U.S. 327, 330, 106 S. Ct. 662, 665, 88 L. Ed. 2d 662 (1986). In addition, Tarailo has failed both to avail himself of post-deprivation remedies or to show that his post-deprivation remedies are inadequate. The evidence establishes that a simple phone call from Tarailo to the Department of Aviation ("DOA") would have sufficed to make a complaint about the removal of his name and to ensure reinstatement of the name if it had been improperly removed. There is no evidence that Tarailo has ever contacted the DOA. And there is no evidence supporting the assertion that a more formal process is necessary here. Accordingly, we grant summary judgment in favor of the City on this claim.
VII. Annexation Claim VIII
The plaintiffs next bring a broad based due process assault contending that the City lacks any authority to enact or enforce any of its ordinances in the O'Hare Area on the grounds that the area was not validly annexed by the City. The plaintiffs contend that the original annexation in 1956 of the land on which O'Hare is now located was technically invalid and that the subsequent 1960 annexation of land abutting Foster Avenue did not cure the defects. In response the City advances several reasons either why we should refrain from considering the issue as a matter of comity, or why the plaintiffs should be deemed procedurally barred as a matter of state law from challenging the annexation. Though these arguments are by no means frivolous, we need not address them because we find that summary judgment in favor of the City is appropriate on other grounds.
Even assuming that the City's annexation of the land encompassing O'Hare is invalid as a matter of state law, it is undisputed that the City owns the land on which O'Hare is built. State law provides that:
All property which (1) is owned by a municipality, and (2) lies outside the corporate limits of the municipality, and (3) does not lie within the corporate limits of any municipality, shall be subject to the ordinances, control, and jurisdiction of the municipality in all respects as the property owned by the municipality which lies within the corporate limits thereof.
Ill.Rev.Stat. ch. 24, § 7-4-2. Thus, the City is authorized to regulate and police O'Hare independent of the issue of annexation. And the state statute granting that authority presents no constitutional problem since the state's authority to regulate its political subdivisions is generally within its absolute discretion. Hunter v. City of Pittsburgh, 207 U.S. 161, 28 S. Ct. 40, 52 L. Ed. 151 (1907). See also Jefferson Twp. v. City of West Carrollton, 517 F. Supp. 417 (S.D.Ohio 1981), aff'd, 718 F.2d 1099 (6th Cir. 1983). So long as there is a grant of authority from the state, a municipality's exercise of extraterritorial police powers will be sustained. See Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 99 S. Ct. 383, 58 L. Ed. 2d 292 (1978).
VIII. Enforcement Challenges
A. Lack of Authority to Make Arrest and Jail (Count X)
We now turn to the various enforcement challenges which the plaintiffs have raised based on alleged violations of the plaintiffs' Fourth and Fourteenth Amendment due process rights. The plaintiffs first reiterate a claim we rejected on the motion to dismiss in Mustfov I that the police cannot lawfully arrest them for violations of the ordinances and detain them in jail until they post bail. 663 F. Supp. at 1268-69. The plaintiffs have asserted no new allegations concerning this claim. Accordingly, our prior opinion governs this issue.
B. Procedural Due Process
The plaintiffs next raise a procedural due process claim that they are being prohibited in their legitimate business of picking up pre-arranged passengers at the airport due to arbitrary enforcement of the ordinance by city officials. In Mustfov I, we determined that the plaintiffs have a property interest at stake when they are effectively prohibited from picking up pre-arranged fares. 663 F. Supp. at 1266. The question we left for resolution on summary judgment is whether the plaintiffs have properly established, or at least have presented a genuine issue of material fact, they are being deprived of that interest by more than negligent conduct by the police. Id.
1) Lack of Probable Cause (Count I)
The plaintiffs' first procedural due process claim is that they were intentionally stopped both before they picked up pre-arranged fares and after the fares were loaded, and that they were subsequently arrested and detained without probable cause. The City denies and the plaintiffs have failed to offer evidence specifically that any arrest for violating the Anti-Solicitation Ordinance ever occurred when the trip was pre-arranged. Nor have the plaintiffs offered any evidence that a pre-arranged trip was ever interrupted by an arrest without probable cause on account of an alleged violation of the Inter-Urban Operations Ordinance.
The only evidence at all offered by the plaintiffs on the issue of arrests is an excerpt from the deposition testimony of the plaintiff Mustfov, in which he states that, on at least one occasion after the police had implemented "Operation Hustle" to crack down on suburban livery operations at O'Hare, the police picked him up and arrested him simply on sight, and that he was subsequently detained for twelve hours. Mustfov further stated that the police warned him that the next time they saw him at the airport, they would again arrest him and detain him for another twelve hours.
That evidence, however, fails to establish any facts from which the inference may be drawn that he was arrested incident to a City custom or policy that arrests without probable cause be undertaken as part of "Operation Hustle." Mustfov has offered no evidence of any other incidents of alleged arrests without probable cause. Further, there is no evidence of any other episodes of alleged intentional arrest without probable cause as to any of the remaining plaintiffs. Thus, all that has been presented is an isolated incident, for which the individual officers involved may be liable, but which fails to create an issue of fact upon which the City might be held liable on the ground that Mustfov was intentionally arrested in accordance with a new policy providing for arrests without probable cause. Absent evidence of a policy, there is no basis for damages, and no reason to consider injunctive relief. Therefore, we grant the City's motion for summary judgment on this claim.
2) Excessive Post-Arrest Detention (Counts VII and X)
Two of the individual plaintiffs, Mustfov and Nikolov, next assert that they have been detained for excessive periods of time in post-arrest processing without just cause and in accordance with a City policy of intentional delay. These plaintiffs do not contest that "a policeman's on-the-scene assessment of probable cause provides legal justification for arresting a person suspected of a crime, for a brief period of detention to take administrative steps incident to arrest." Gerstein v. Pugh, 420 U.S. 103, 113-14, 95 S. Ct. 854, 862-63, 43 L. Ed. 2d 54 (1975). The plaintiffs contend, however, that the reasons and the time for their post-arrest detention went beyond those necessary for administrating the arrest.
As we observed in Mustfov I, 663 F. Supp. at 1271, the Seventh Circuit has not identified exactly how long the "brief period" for administrative processing may be. Nevertheless, based upon Seventh Circuit precedent discussing the issue, we concluded that "in determining what is a justifiable 'brief period,' we are to decide whether the detention is justified as incident to a legitimate governmental purpose or is imposed for the purpose of punishment." Id. Accordingly, we directed the City, on summary judgment, to "present evidence to explain what must be done after these drivers are arrested and why reasonably diligent officers needed [up to] twelve or more hours to do it." Id. See Gramenos v. Jewel Companies, Inc., 797 F.2d 432, 437 (7th Cir. 1986), cert. denied, 481 U.S. 1028, 107 S. Ct. 1952, 95 L. Ed. 2d 525 (1987); Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336 (7th Cir. 1985).
We first mention the evidence presented by the plaintiffs on the issue of unreasonable detention. Regarding the time periods of detention, there is evidence that the plaintiff Mustfov had been held in post-arrest detention for periods of time ranging from as much as four to twelve hours, and that his average period of detention was three to four hours. It has been stipulated that the plaintiff Nikolov has spent an average of four hours in detention. On the issue of reasonableness, there is testimony from city police officers that, as part of "Operation Hustle" and a new "get tough" policy against the livery drivers, the City wanted to detain livery drivers as long as possible after arrest to prevent them from going back out on the street. There is further evidence that another livery driver, Mendoza, was warned that if he elected to exercise privilege of phone call, he would be detained an additional three hours and would be subject to additional processing, thus suggestive of City practices regarding detention. Moreover, one of the police officers, Joseph DeFranco, testified that there was a directive from his superiors to take fingerprints on each and every arrest of livery violators. Another officer, George Andikokus, indicated that it would then take anywhere from four to twelve hours or more for fingerprint clearance. There is also evidence that the police knew that the plaintiffs had been complaining concerning the length of detention.
In response to all of this evidence, the City has failed to follow our direction in Mustfov I to provide an explanation why detention periods of up to twelve hours may have been necessary in Mustfov's case and why average detention periods of up to four hours for both plaintiffs were necessary. Instead, the City mistakenly contends that it cannot be liable as a municipality for these detentions. The City ignores the fact that the plaintiffs have asserted that a City custom and policy of unreasonable and excessive detention was involved, and that the plaintiffs have raised at least an issue of fact regarding the existence of such a custom or policy.
The City also asserts that summary judgment in its favor is appropriate on this claim because on average, the lengths of detention for Mustfov and Nikolov were only three to four hours. However, nowhere has it been stipulated that an average detention period of four hours is per se reasonable and four hours is a period of time that the Seventh Circuit has plainly indicated deserves an explanation. See Gramenos, 797 F.2d at 437 (reversing summary judgment in favor of police, finding that a four hour detention in the dead of night required an explanation from the police justifying such a detention); Moore, 754 F.2d 1336 (also requiring an explanation for a four hour detention). Indeed, the evidence that the plaintiffs were detained on average up to four hours suggests that on occasions the detention periods must have lasted greater than four hours. We further observe that, in light of evidence that post-arrest processing prior to "Operation Hustle" took only 15-20 minutes, the fact that later processing took an average of four hours does not weigh in the City's favor. Moreover, a question arises as to the necessity of fingerprinting the plaintiffs after every arrest, since it is undisputed that these plaintiffs were arrested on hundreds of occasions and that the officers enforcing the ordinances were quite familiar with the plaintiffs.
Though we see no inherent problem with a crackdown of enforcement of the ordinances, there exists a genuine issue of fact whether the City legitimately employed its battery of post-arrest procedures or whether it engaged in an abuse of process based on a policy that encouraged the arbitrary exercise of the discretionary authority of its police officers in order to punish the plaintiffs with process. Accordingly, both the City's and the plaintiffs' motions for summary judgment as to this claim are denied.
The corporate plaintiffs, Ace and Adventure, have also asserted Fourth Amendment claims based on the detention of their "employees." However, not only do Ace and Adventure fail to have any Fourth Amendment standing to sue for the unreasonable detention of others, they have severed any relationship to the individual plaintiffs by asserting that their drivers are independent contractors, not employees. Accordingly, we enter summary judgment against them and in favor of the City on this claim.
C. Differing Arrest Policies (Count V)
Finally, we turn to the plaintiffs' equal protection challenge regarding the City's alleged practice of disparate enforcement of the ordinance at Midway and O'Hare airports. This claim fails on summary judgment for three reasons. First, the record is bereft of any competent evidence that such a policy of disparate enforcement of the ordinances at the two airports even exists. Indeed, based upon the admissions and stipulations, the facts are uncontested that the City's arrest policy is the same at both airports: arrest and transportation to the nearest district station.
Second, it appears on the facts before us that this claim does not properly come within the ambit of the Equal Protection Clause because there is no evidence that a particular group has been singled out for disparate treatment. From what we can discern from the scant record on this issue, all livery drivers are affected by the alleged disparate treatment the same way; there is no distinct group of Midway livery operators versus O'Hare livery operators. Thus, this claim does not present a case of similarly situated individuals being treated differently, and therefore more appropriately falls with the ambit of the Due Process Clause as yet another assertion of arbitrary enforcement.
Third, whether covered by the Equal Protection or the Due Process Clause, if there is a rational basis in this case for the alleged disparity in the enforcement of the ordinances at the two airports then the measures will be sustained. Mustfov I, 663 F. Supp. at 1263. The only disparity in treatment of violators at Midway and O'Hare is that an arrest and subsequent processing may take longer at O'Hare than at Midway. The City has adequately shown, without contest by the plaintiffs, that rational reasons exist for this difference in processing time -- the size of the airports, the numbers of violators at each, the amount of traffic, the geographic location, and the location of police facilities. Accordingly, we grant the City's motion for summary judgment on this issue.
We grant summary judgment in favor of the City and against the plaintiffs on all of the remaining claims except one. We find that an issue of fact exists, sufficient to preclude summary judgment for either side on the claim for damages, based on evidence that the plaintiffs Mustfov and Nikolov may have been intentionally subjected to excessive post-arrest detention periods on numerous occasions, in accordance with a City custom or policy. It is so ordered.