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Cancel v. City of Chicago

December 4, 2008

DISENIA CANCEL, PLAINTIFF,
v.
CITY OF CHICAGO, ET AL., DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

Disenia Cancel ("Disenia") and Ismael Cancel ("Ismael") (collectively "Cancels") filed a two-count Amended Class Action Complaint ("Complaint") against the City of Chicago ("City") and its Superintendent of Police Jody Weis ("Weis"),*fn1 asserting that Cancels were deprived of their constitutional rights under the Fourteenth Amendment to the United States Constitution to reasonable notice and a prompt post-seizure probable cause hearing after their respective vehicles were seized by Chicago police officers (Complaint Count I ¶4, Count II ¶4). Cancels have now moved for certification, under Fed. R. Civ. P. ("Rule") 23, of multiple classes and subclasses of individuals who had vehicles taken from them by Chicago police officers.*fn2

For the reasons and on the terms stated in this memorandum opinion and order, this Court certifies the proposed classes with some modification.

Background

Seizure of Disenia's Vehicle Under Article 36

On or about January 3, 2008 Disenia's Dodge Stratus was seized by Chicago police officers. Disenia was a passenger in her vehicle, which was being driven by her companion*fn3 to take her to the hospital for emergency medical care. Chicago police officers stopped the vehicle and issued a ticket for driving with a suspended or revoked license. Disenia's car was towed first to the Chicago Police Department ("CPD") District Lot for violation of a City ordinance and then to the auto pound located at 701 N. Sacramento. When Disenia posted bond, her car was released and she drove the car to her home.

On January 4 Chicago police officers towed the car yet again, this time to "Pound One" for an alleged violation of Article 36, which permits the seizure of vehicles that are used with the knowledge and consent of the owner in the commission of crimes, including driving with a license that was revoked or suspended for a DUI (720 ILCS 5/36-1 to 5/36-4).*fn4 On January 7 notice was sent to Disenia advising her that her vehicle had been seized again.

According to Disenia, City's policy and practice is to charge towing and daily storage fees to the owners of vehicles seized under Article 36. Disenia claims that City's policy and practice prohibited release of the vehicle until the decision has been made whether to seek forfeiture of the vehicle pursuant to Article 36. Disenia claims that for 30 days or more City failed to inform her of her right to a prompt post-seizure hearing, did not allow her to post bond and did not provide a proper hearing to determine the validity of the vehicle's continued detention.

On or about February 8 City advised Disenia that her vehicle would not be subject to forfeiture, but it would still not be released until she paid all accumulated towing and storage fees amounting to over $1000 at that time. Fees have been mounting ever since, so that Disenia claims they now exceed the vehicle's actual value.

Seizure of Ismael's Vehicle for Investigation

On January 10, 2008, after a witness identified Ismael's vehicle as having fled the scene of an attempted theft, Chicago police officers seized the vehicle as part of the criminal investigation and towed it to Pound One. Later that day Pound One sent Ismael a "vehicle hold notice." City assessed towing and storage fees in accordance with City policy.

Ismael alleges that the notice he received was constitutionally defective, that his vehicle was detained without a judicial determination of probable cause and that he was denied the right to a reasonably prompt post-seizure hearing before a judicial officer.

Proposed Class Definitions*fn5

Article 36 Classes Under Rule 23(b)(3)

1. Article 36 Damage Class

Disenia seeks certification of an Article 36 Damage Class under Rule 23(b)(3), comprising (Motion 1-2 and Reply 14-15): all persons who had vehicles*fn6 impounded by Chicago police officers from May 2, 2008 to the present, provided that (a) the vehicle was not immediately returned to the owner; (b) the vehicle was held, ostensibly pursuant to Article 36; (c) towing and storage fees were charged against the seized vehicle; and (d) the vehicle was held for more than seven business days without judicial review and without the opportunity to post bond to secure release of the vehicle.

2. Article 36 Damage Subclass

Disenia also seeks certification of an Article 36 Damage Subclass under Rule 23(b)(3) for these car owners who did not have a forfeiture trial (Reply 16-17): all vehicle owners who had vehicles towed pursuant to Article 36 after February 14, 2006, provided that

(a) the sheriff or the prosecutor declined to file a forfeiture action or the CPD agreed to return the vehicle; (b) the decision not to file a forfeiture action or to return the vehicle voluntarily was made more than seven business days after the vehicle was impounded; and (c) the owner was required to pay storage fees and costs or his or her vehicle was sold at auction or crushed.

Article 36 Classes Under Rule 23(b)(2)

1. Article 36 Timeliness Class

Disenia seeks certification of an Article 36 Timeliness Class under Rule 23(b)(2), comprising (Motion 2 and Reply 8-9, 18-19): all persons who have had, or will have, a vehicle towed by order of a Chicago police officer after February 14, 2003, provided that (a) the vehicle was towed pursuant to Article 36; (b) towing and storage fees were, or will be, assessed against the owner; and (c) the vehicle was impounded for more than seven business days without a judicial or administrative hearing.

2. Article 36 Nature and Scope Subclass

Disenia also seeks certification of this Article 36 Nature and Scope Subclass under Rule 23(b)(2) to challenge the nature and scope of the CPD "hearing" (Motion 2 and Reply 8-9, 18-19):*fn7 all persons who have had, or will have, a vehicle towed by order of a Chicago police officer after February 14, 2003, provided that (a) the vehicle was towed pursuant to Article 36; (b) towing and storage fees were, or will be, assessed against the owner; (c) the vehicle owner was provided a "hearing" by personnel from CPD Pound No.1; (d) the sheriff or the prosecutor declined to file a forfeiture action or the CPD agreed to return the vehicle; and (e) the decision not to file a forfeiture action or to return the vehicle voluntarily was made more than seven business days after the vehicle was impounded.

Hold-for-Investigation Classes

1. Rule 23(b)(3) Hold-for-Investigation Class

Ismael proposes this Rule 23(b)(3) Hold-for-Investigation Class (Motion 4-6): all persons who had vehicles seized and impounded by Chicago police officers for "investigation" from June 17, 2006*fn8 to the present, provided that the vehicle was subject to towing and storage fees for more than seven business days ...


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