Report produced by the City defendants at a deposition. It shows, on that one page at least, that the majority of the cars destroyed were seven years old or older. Kohn accordingly posits that "even if only 10% of [all vehicles disposed of] were older than seven years and had a valid registration at the time of the towing, that would still amount to nearly 16,000 potential class members." Although he admits that figure is not precise, Kohn argues that when it is "difficult to determine the precise number of members in the class, the plaintiff need not allege an exact figure: a good faith estimate is sufficient." Harris v. General Dev. Corp., 127 F.R.D. 655, 660 (N.D.III. 1989); see also Long v. Thornton Township High School Dist., 82 F.R.D. 186, 189 (N.D.III. 1979). We do not question that proposition, nor its general applicability in this case. But Kohn's showing as to the possible size of the classes in reliance on that proposition is incomplete. In both Harris and Long the plaintiffs presented evidence of a large number of class members; it was only the exact number of class members that was in question.
In the present case, however, the question is not "what is the precise size of the class," but rather "is the class sizable at all?" Although he has presented evidence of the number of cars disposed of in a two year period by the City of Chicago, and has provided an indication that many of these cars were older than seven years, he has presented no basis in fact regarding whether any of these vehicles were properly registered. Leaving that crucial deficiency aside, even were we willing to assume, at least for the initial certification of the classes, that a sizeable number of vehicles disposed of were both older than seven years and properly registered, the inquiry nevertheless is not complete since these two factors alone do not define the classes narrowly enough.
In order to ensure that the commonality and typicality requirements of Rule 23(a)(2) and (a)(3), the plaintiff classes must be limited to those who, like the plaintiff, received no notice whatsoever prior to the destruction of their vehicle. The classes should not include those who actually received notice by first class mail, because they, unlike the plaintiff, would have had a chance to save their vehicles from destruction. Kohn and these plaintiffs would not share the requisite commonality of facts, nor would Kohn's claim be typical of these others' claims. Failure to exclude from the class those who received some pre-disposal notice would require a case-by-case determination of whether class members actually received notice, and would make the action unmanageable. Cf. Goichman v. Aspen, 590 F. Supp. 1170, 1173-74 (D. Colo. 1984) (the variety of vehicle impoundment procedures afforded the proposed plaintiff class militated against the certification of the class). Further, the classes should also be limited only to those who had kept their current addresses on file with the Secretary of State, affording the relevant police agencies the opportunity to locate them. Once the classes have been properly narrowed to those people whose cars were older than seven years and properly registered when destroyed; who received no notice whatsoever; and whose then current addresses were on file with the Secretary of State, then it is only speculation to claim that the classes are sufficiently numerous to satisfy Rule 23, based on the showing that Kohn has made.
Having failed to meet his burden of showing with respect to this matter, Kohn's motion for class certification is denied.
III. Margolis and O'Grady's Motions to Dismiss and Kohn's Motion to Certify Defendant Classes
Margolis and O'Grady each move to dismiss the complaints against them because of a lack of a case or controversy between themselves and Kohn. This "standing" requirement is mandated by Article III of the United States Constitution which requires that an actual case or controversy exists before a court may exercise its judicial power. J.N.S. Inc. v. Indiana, 712 F.2d 303, 305 (7th Cir. 1983). An actual case or controversy is a threshold requirement which must be met by those seeking to invoke the jurisdiction of the federal courts. O'Shea v. Littleton, 414 U.S. 488, 493, 94 S. Ct. 669, 675, 38 L. Ed. 2d 674 (1974). A possible future controversy which may arise due to a defendant's general policy of enforcing laws is insufficient to meet this requirement. J.N.S. Inc., 712 F.2d at 305. The standing requirement ensures that opposing parties in a suit have "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions . . . ." Baker v. Carr, 369 U.S. 186, 204, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962).
Neither the Sheriff of Cook County or the Director of the Illinois State Police had anything to do with Kohn losing his car. Kohn lives in Chicago and his car was towed and sold for scrap by the Chicago Police Department, which is independent of the Cook County Sheriff's department and the Illinois State Police. Kohn argues, however, that Margolis and O'Grady are proper defendants because they are "juridically linked" with the Chicago Police Department. "A 'juridical link' is some legal relationship which relates all defendants in a way such that [a] single resolution of the dispute is preferred to a multiplicity of similar actions." Thillens, Inc. v. Community Currency Exchange Ass'n, 97 F.R.D. 668, 676 (N.D. III. 1983). The juridical link exception is generally invoked with respect to the certification of defendant classes in class action suits. See e.g. La Mar v. H & B Novelty & Loan Co., 489 F.2d 461 (9th Cir. 1973) (proposed defendant class of pawnshops not juridically linked); Hopson v. Schilling, 418 F. Supp. 1223 (N.D. Ind. 1976) (juridically linked all Indiana township trustees); Mudd v. Busse, 68 F.R.D. 522 (N.D. Ind. 1975) aff'd without opinion, 582 F.2d 1283 (7th Cir. 1978), cert. denied, 439 U.S. 1078, 99 S. Ct. 858, 59 L. Ed. 2d 47 (1979) (no juridical link among all Indiana judicial officers); Marcera v. Chinlund, 595 F.2d 1231 (2d Cir.), vacated on other grounds sub nom. Lombard v. Marcera, 442 U.S. 915, 61 L. Ed. 2d 281, 99 S. Ct. 2833 (1979) (defendant class of sheriffs juridically linked); De Allaume v. Perales, 110 F.R.D. 299 (S.D.N.Y. 1986) (defendant class of 58 county commissioners juridically linked). The application of the juridical link exception has been held to be most appropriate where "all members of the defendant class are officials of a single state and are charged with enforcing or uniformly acting in accordance with a state statute . . . which is alleged to be unconstitutional." Mudd, 68 F.R.D. at 528. It has been explained as a "procedural device perhaps sometimes required by the legal fictions surrounding the case law between the Eleventh Amendment and the doctrine of Ex Parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 [(1908)]." Id.
In the case at hand, Kohn has sought certification of two defendant classes: one consisting of all the county sheriffs in Illinois, the other consisting of the superintendents of all city police departments in Illinois. He accordingly asks us to juridically link both Margolis and the two classes to Martin, the Superintendent of the Chicago Police Department. We do not believe that this case warrants application of the doctrine. Although the defendants in the instant case are state officials all charged with enforcing the same constitutionally challenged state statutes, we are not persuaded that "a single resolution of the dispute [would be] preferred to a multiplicity of similar actions." Thillens, 97 F.R.D. at 676. The juridical link exception serves its best function in class actions involving both plaintiff and defendant classes as means of drawing together "typical" claims by identically situated plaintiffs and defendants. In other words, properly applied, the juridical link doctrine essentially confers the standing of each individual class member on the class representative.
Since we do not believe that a plaintiff class should be certified, the justification for juridically linking the proposed defendants is greatly diminished. It is undisputed that Kohn individually has no grounds for bringing a damage action against any of the proposed defendant class members except for Martin. Further, with respect to Kohn's claim for declaratory and injunctive relief, we see no need to certify defendant classes of sheriffs and police superintendents. Kohn has offered no reason to believe that these public officials will not comply with our ruling today as to the constitutionality of the sections of the Illinois Motor Vehicles Code and the Municipal Code of Chicago. See 3B Moore's Federal Practice para. 23.40 (some courts "reason that if the adjudication of individual declaratory or injunctive relief, in combination with stare decisis, collateral estoppel and the good faith of the loser, will as a practical matter produce the same result as formal class-wide relief, then the court should not be burdened with the potential complexities of a class suit"). Accordingly we deny certification of the two defendant classes, and grant O'Grady's and Margolis' motions to dismiss.
IV. City Defendants' Motion to Dismiss
A. Claims for Equitable Relief
The City defendants have first moved to dismiss Kohn's claim for injunctive relief on the ground that Kohn lacks standing to seek relief restraining the City from towing and disposing vehicles pursuant to the challenged sections of the Illinois Vehicle Code. The City defendants rely on Los Angeles v. Lyons, 461 U.S. 95, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983), in which the Supreme Court held that equitable relief is available only where the plaintiff who has suffered a prior injury has shown that there is a "real or immediate threat that the plaintiff will be wronged again in a similar way. . . ." Id. at 111, 103 S. Ct. at 1670; a speculative claim of future injury is insufficient. See also Robinson v. Chicago, 868 F.2d 959, 967 (7th Cir. 1989) (former arrestees lacked standing to seek equitable relief because it was not reasonably likely that they would be arrested again); Palmer v. Chicago, 755 F.2d 560, 572 (7th Cir. 1989) (convicted felons lacked standing to seek an injunction against defendants' practice of withholding exculpatory evidence because of unlikelihood that they would be wronged again). Kohn has failed to satisfy this requirement, as he has not produced evidence, or even alleged, that there is a sufficient likelihood that he will be wronged again. Accordingly, we dismiss all of his claims for injunctive relief.
B. Individual and Official Capacity Claims
The City defendants next contend that Kohn has failed to state individual capacity claims against Martin and Mucia. Both Kohn and the City defendants rely on Rascon v. Hardiman, 803 F.2d 269 (7th Cir. 1986). Rascon dealt with the individual liability of a supervisory official in a section 1983 action. The court in Rascon stated that individual liability in section 1983 actions is based on personal responsibility. Id. at 273. The court also held that "an official satisfies the personal responsibility requirement of section 1983 if she acts or fails to act with a deliberate or reckless disregard of plaintiff's constitutional rights, or if the conduct causing the constitutional deprivation occurs at her direction or with her knowledge and consent." Id. at 274 (quoting Smith v. Rowe, 761 F.2d 360, 369 (7th Cir. 1985)). Martin and Mucia, by their approval and implementation of a policy of notification by first class mail of owners of impounded vehicles older than seven years, have not acted with deliberate or reckless disregard for Kohn's constitutional rights. They were simply following state law, which they were entitled to presume was constitutional. The requisite level of fault on the part of Mucia and Martin is missing. Therefore, we dismiss the individual capacity claims against them.
The City defendants also challenge Kohn's official capacity claims against Martin, Mucia, and Officer Collins, as being redundant. They contend that because the City of Chicago has been properly named as a defendant, that it is not necessary to also pursue official capacity claims against these city employees. Official capacity suits are generally a way to plead an action against the organization which employs the official. Kentucky v. Graham, 473 U.S. 159, 165, 105 S. Ct. 3099, 3105, 87 L. Ed. 2d 114 (1985). Since Monell v. Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), however, local government units can be sued directly; there is no need to bring an official capacity action. As long as the government entity has notice and an opportunity to respond, "an official capacity suit is, in all respects other than name, to be treated as a suit against the entity." Graham, 473 U.S. at 166, 105 S. Ct. at 3105. The official capacity suits against Martin, Mucia, and Collins are thus redundant and unnecessary, because they are essentially suits against the city, which is already a named defendant. Accordingly, we dismiss the official capacity claims.
C. The Constitutionality of Certain Municipal and State Statutes
The City moves to dismiss Kohn's Fourteenth Amendment challenge of vagueness and overbreadth to sections 27-200 and 27-372 of the Municipal Code of Chicago. In his responsive memorandum Kohn has not raised any objection to the motion to dismiss the challenge to these sections, and therefore the motion to dismiss may be granted for that reason alone.
In any event, we also find that the sections are not impermissibly vague. Section 27-200 defines abandoned vehicles, and section 27-372 prohibits the abandonment of motor vehicles. Laws are impermissibly vague if they are vague in all their applications. Village of Hoffman Estates v. Flipside, 455 U.S. 489, 495, 102 S. Ct. 1186, 1191, 71 L. Ed. 2d 362, reh. denied, 456 U.S. 950, 102 S. Ct. 2023, 72 L. Ed. 2d 476 (1982). In ruling on an identical challenge to the two sections, Judge Hart of this district has concluded:
It is clear that the definitions are not vague under all applications. The "not been moved or used for seven days" portion of the definition is an objective and clear cut definition. The "apparently deserted" element of that definition, if not already clear, is made clear by attaching seven-day notice stickers to cars that are believed abandoned, which General Order 83-12 [of the Police Department] provides for. See Tedeschi v. Blackwood, 410 F. Supp. 34, 45 n. 15 (D. Conn. 1976) (cited in Miller v. City of Chicago, 774 F.2d 188, 192-93 (7th Cir. 1985), cert. denied, 476 U.S. 1105, 106 S. Ct. 1949, 90 L. Ed. 2d 358 (1986)).
Panter v. City of Chicago, No. 86 C 7187, slip op. at 5 (N.D. III. 1986). Based on this reasoning, Judge Hart found that sections 27-200 and 27-372 were constitutional. We agree with Judge Hart's reasons for finding that these provisions are not impermissibly vague in all of their applications. Accordingly, we grant the City's motion to dismiss on this issue.
The City also moves to dismiss Kohn's Fourteenth Amendment challenges to sections 4-201 through 4-208, and 4-210 through 4-214 of the Illinois Motor Vehicle Code, for failure to state a claim. The City generally alleges their constitutionality and sound basis in policy. Kohn's response to the motion to dismiss concentrated solely on the notice provision of section 4-209(b). Kohn has not objected to the motion to dismiss these other provisions of the code. By not responding to the City's motion to dismiss as to these provisions, Kohn has waived the claims. Therefore, we grant the City's motion to dismiss the Fourteenth Amendment challenges to sections 4-201 through 4-208, and 4-210 through 4-214 of the Illinois Motor Vehicle Code.
D. Claims Under the Fourth Amendment
Kohn additionally has raised a Fourth Amendment challenge to III. Rev. Stat. ch. 95 1/2 § § 4-201 through 4-214, and sections 27-360 and 27-362 of the Municipal Code of Chicago. Here again, however, Kohn has failed to object or otherwise respond to the defendants' motion to dismiss this claim. Moreover, we also agree with the defendants that the concerns of the Fourth Amendment are not applicable here. The Fourth Amendment protects citizens from unreasonable searches and seizures, especially in the context of a criminal investigation. See e.g., Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The Fourth Amendment is concerned with insuring that evidence is seized only with probable cause and that people's privacy is not invaded arbitrarily. United States v. Ortiz, 422 U.S. 891, 95 S. Ct. 2585, 45 L. Ed. 2d 623 (1975). Kohn's car was not to be used for evidence, nor was his privacy invaded in the context of a criminal investigation. Therefore we dismiss Kohn's complaint insofar as it purports to present a Fourth Amendment claim.
E. Constitutionality of Post-tow Notice by Regular Mail
We now turn to the claim that is at the heart of this suit -- Kohn's due process claim for damages arising from the alleged inadequacy of the notice afforded him under section 4-209(b) of the Illinois Vehicle Code. The City has moved to dismiss for failure to state a claim, and Kohn has responded with a motion for partial summary judgment on the issue of the constitutional sufficiency of section 4-209(b),
and the City's policy of following that statute with regard to the disposition of impounded cars.
Kohn contends that section 4-209(b) violates due process because it authorizes only first class mail notice, instead of certified mail notice, to owners of impounded vehicles older than seven years, prior to the disposal of the vehicles.
A person's car is property, which cannot be taken from him without due process of the law. Sutton v. Milwaukee, 672 F.2d 644 (7th Cir. 1982). In support of their respective positions, the parties agree that Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18 (1976), provides the controlling test for deciding what additional procedural safeguards are necessary before the government can deprive someone of property. The Mathews test requires a court to account for three factors:
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 administrative burdens that the additional or substitute procedural requirement would entail. Mathews, 424 U.S. at 335, 96 S. Ct. at 903.