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GARCIA v. CITY OF CHICAGO

United States District Court, Northern District of Illinois, Eastern District


April 16, 2003

SALVADOR GARCIA, ETC., ET AL., PLAINTIFFS,
v.
CITY OF CHICAGO, DEFENDANT.

The opinion of the court was delivered by: Milton I. Shadur, Senior United States District Judge

MEMORANDUM ORDER

City of Chicago ("City") has filed its Answer and Affirmative Defenses ("ADs") to the Complaint brought against it by Salvador Garcia ("Garcia") through his next friend Nancy Garcia. This memorandum order is issued sua sponte to address, in light of a recent development identified in City's responsive pleading, only the putative class allegations that have been included in Garcia's Complaint.

In material part Garcia has advanced a facial challenge to Chicago Municipal Code § 8-8-070 (the "Ordinance"), pursuant to which Garcia (who was acting with two others) was charged and taken into custody for assertedly making gang signs, shouting gang slogans at passing vehicles and pedestrians and engaging in threatening behavior (one of Garcia's associates assertedly removed a handgun from his back pocket in the course of that activity). Garcia's arrest and charge form the gravamen of the class allegations found at Complaint ¶¶ 13-20. But importantly in that respect, Answer ¶ 17 and A.D. 2 state that as of March 27, 2003 the Chicago Police Department instructed all officers that the Ordinance was no longer to be enforced.

That of course moots any facial attack on the Ordinance for future purposes.*fn1 Even more critically, the already problematic issue of Garcia's ability to satisfy the typicality precondition to class certification under Fed.R.Civ.P. ("Rule") 23(a)(3) has plainly hardened into a certainty that Rule 23(b)(3) cannot be satisfied. With the issue having reduced itself to the potential for the putative class members' recovery of damages for past enforcement of the Ordinance (that potential assumes for present purposes that the attack on its constitutionality would prove successful), there is no question that the individualized determinations of liability and damages of the different plaintiffs would strongly predominate over the question of constitutionality that would be common to putative class members.

Accordingly this action will proceed solely as an individual lawsuit by Garcia on his own behalf. Complaint ¶¶ 13 through 20, the allegations of Complaint ¶¶ 24 and 29 as to class members and the portion of the Complaint's prayers for relief having to do with class members are stricken. And of course the prayer for an order certifying the class is denied as to each of the two counts in the Complaint.


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