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TOWERS v. CITY OF CHICAGO

September 30, 1997

SANDRA TOWERS, ROBERT STURDIVANT, and KEVIN AMOS, individually and on behalf of others similarly situated, Plaintiffs,
v.
CITY OF CHICAGO, Defendant.



The opinion of the court was delivered by: KEYS

 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.

 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, PP 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, PP 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, PP 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, P 3; Count III, PP 11-12.)

 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, PP 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. *fn1" (Complaint at Count I, P 6; Count III, P 18.) Ms. Towers finally retrieved her car after paying a $ 500 cash bond and $ 225 for towing and storage fees. (Complaint at Count III, PP 21, 22, 28.)

 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, P 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. *fn2" (Complaint at Count III, PP 23, 25.) Consequently, on March 8, 1996, a final administrative order was entered against Ms. Towers. (Complaint at Count I, P 15.)

 II. Facts Relating to Plaintiff Sturdivant

 In September of 1996, *fn3" 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, PP 7-10.) A person, not Mr. Sturdivant, was in Mr. Sturdivant's car and possessed a firearm at the time of the violation. *fn4" (Complaint at Count II, P 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, P 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, P 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. *fn5" Because Mr. Sturdivant cannot avail himself of any of the defenses provided by the ordinance, he "will lose the hearing. . . ." (Complaint at Count II, PP 14-15.) *fn6" 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, PP 20-21.)

 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, PP 8-10.) He was counting his gas money and playing his car radio. (Id. at P 10.) Two Chicago police officers ordered Mr. Amos out of his car, searched him, and searched his vehicle. (Complaint at Count II, PP 11-13.) No contraband was found on his person or in his car. (Complaint at Count II, P 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, PP 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, PP 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, PP 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, PP 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, P 21.) *fn7" Mr. Amos was unable to pay the $ 500 fine pursuant to the statute, for "many days." (Complaint at Count II, P 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, 2 L. Ed. 2d 80, 78 S. Ct. 99, (1957); Chicago Dist. of Carpenters Pension Fund v. G & A Installations, Inc., No. 95 C 6524, 1996 WL 66098, at *1 (N.D. Ill. 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, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (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. 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 on February 22, 1996. *fn8" 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 (Ill. App. Ct. 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, 128 L. Ed. 2d 464, 114 S. Ct. 1837 (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 (Ill. App. Ct. 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 Ill. 2d 331, 175 N.E.2d 556 (Ill. 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, 36 Ill. App. 3d 263, 343 N.E.2d 534, 538 (Ill. App. Ct. 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 Ill. 2d 268, 673 N.E.2d 251, 254, 220 Ill. Dec. 339 (Ill. 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. *fn9"

 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, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). Congress passed § 1983 "'for the express purpose of 'enforcing the Provisions of the Fourteenth Amendment."" Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 934, 73 L. Ed. 2d 482, 102 S. Ct. 2744 (1982) (quoting Lynch v. Household Finance Corp., 405 U.S. 538, 545, 31 L. Ed. 2d 424, 92 S. Ct. 1113 (1972) (quoting Cong. Globe, 42 Cong., 1st 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, 93 L. Ed. 2d 781, 107 S. Ct. 766 (1987); Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 19, 69 L. Ed. 2d 435, 101 S. Ct. 2615 (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, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (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, 89 L. Ed. 2d 452, 106 S. Ct. 1292 (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. *fn10" 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, III, 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. *fn11"

 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, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976). 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, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (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, 90 L. Ed. 2d 358, 106 S. Ct. 1949 (1986)(citing Mathews, 424 U.S. at 335; Logan v. Zimmerman Brush Co., 455 U.S. 422, 434, 71 L. Ed. 2d 265, 102 S. Ct. 1148 (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 "automobiles occupy a central place in the lives of most Americans, providing access to jobs, schools, and recreation as well as to the daily 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, P 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 a common 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. *fn12" Holstein, 29 F.3d at 1148 (citation omitted).

  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, 34 L. Ed. 2d 47, 93 S. Ct. 30 (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 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 "the 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. *fn13" Plaintiffs argue that, because they 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 (5th Cir. 1984), cert. denied, 469 U.S. 934, 83 L. Ed. 2d 268, 105 S. Ct. 332 (1985). 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. 729 F.2d 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. *fn14" Plaintiffs cite to no 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 ...


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