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Garth v. City of Chicago

October 2, 2009

WALTER GARTH, PLAINTIFF,
v.
CITY OF CHICAGO AND LIEUTENANT BERTI, DEFENDANTS.



The opinion of the court was delivered by: Matthew F. Kennelly United States District Judge

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge

Plaintiff Walter Garth has sued the City of Chicago and Chicago police Lieutenant Berti under 42 U.S.C. § 1983 alleging violations of the Fourth and Fourteenth Amendments, and he has also asserted state law claims against them. The City and Berti have moved to dismiss Garth's complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).

Background

The Court takes the facts as they are alleged in Garth's complaint. On May 1, 2008, Garth, an African-American man who is employed as a Chicago police officer, dropped his son off at a school in Chicago while lawfully operating his motorcycle. Garth was attired in motorcycle riding clothing; he says it was readily apparent that he is African-American. Berti, a white male, was sitting in an unmarked police car and watched Garth drop his son off at school. Berti also noticed Garth's motorcycle attire and race.

As Garth drove away, Berti activated the emergency equipment in his vehicle and instructed Garth to stop the motorcycle and pull over to the side of the road. Garth pulled over to the side of the road and stopped his motorcycle but then noticed that Berti was continuing to drive his police car toward the rear of the motorcycle. Garth became concerned that Berti's car was going to strike his motorcycle and cause him serious harm, so he pulled away. Berti continued to follow Garth and, Garth says, made additional attempts to tip the motorcycle by driving the police car into the rear of the motorcycle. Each of Berti's attempts placed Garth in apprehension of receiving a battery.

Berti later learned that Garth was a Chicago police officer and prepared a police report asserting that Garth unlawfully attempted to flee or elude a police officer. Pursuant to the report, under the Chicago Municipal Code, Garth's vehicle became eligible for impoundment, and Garth received a notice to that effect. Garth contested the notice, and the City's Department of Administrative Hearings conducted a hearing on September 9, 2008.

According to the Code, "to disprove the vehicle's eligibility for impoundment, the owner of record must prove that (1) at the time and date of the attempted stop . . . the described vehicle was not operated within the City of Chicago; or (2) at the time and date of the attempted stop, the vehicle was reported stolen; (3) the license information described in the report does not match the listed make of the described vehicle." Chicago Mun. Code § 9-92-035(e). Garth was unable to prove any of these things, and the administrative law officer found that Garth's motorcycle was "eligible for impoundment if found on the public way within 12 months" after September 9, 2008. This enabled any Chicago police officer to seize Garth's motorcycle within the specified time frame. To date, the vehicle has not been seized and remains in Garth's possession.

Discussion

When considering a motion to dismiss a complaint, the Court accepts the facts stated in the complaint as true and draws reasonable inferences in favor of the plaintiff. Hallinan v. Fraternal Order of Police of Chicago Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). To survive a motion to dismiss under Rule 12(b)(6), the complaint must include enough facts to state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009); Bissessur v. Ind. Univ. Bd. of Trs., No. 08-3504, 2009 WL 2902076, at *2 (7th Cir. Sept. 11, 2009). A claim is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. "This said, in examining the facts and matching them up with the stated legal claims, [a court] give[s] 'the plaintiff the benefit of imagination, so long as the hypotheses are consistent with the complaint.'" Bissessur, 2009 WL 2902076, at *2 (quoting Sanjuan v. Amer. Bd. of Psychiatry and Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994)).

A. Section 1983 Claims Against Berti

1. Fourth Amendment Claim

Garth alleges that Berti seized him within the meaning of the Fourth Amendment because Garth complied with Berti's order to stop. Berti contends that the Court should dismiss the claim because Garth drove away and never complied with the order.

The Fourth Amendment protects against "unreasonable . . . seizures includ[ing] seizure of the person." California v. Hodari D., 499 U.S. 621, 624 (1991) (internal quotation marks omitted). Whether a seizure occurred depends on "the totality of the ...


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