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Cheryl Yachnin, Individually and On Behalf of Other Similarly v. Village of Libertyville

March 10, 2011

CHERYL YACHNIN, INDIVIDUALLY AND ON BEHALF OF OTHER SIMILARLY SITUATED PERSONS, PLAINTIFF,
v.
VILLAGE OF LIBERTYVILLE, VILLAGE OF LIBERTYVILLE POLICE DEPARTMENT, CHIEF OF POLICE PATRICK CAREY, IN HIS INDIVIDUAL CAPACITY, OFFICER JAMES FINN, IN HIS INDIVIDUAL CAPACITY, STATE'S ATTORNEY MICHAEL WALLER, IN HIS INDIVIDUAL CAPACITY, DEFENDANTS.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiff Cheryl Yachnin ("Yachnin") filed suit against the Village of Libertyville ("Village"), the Village of Libertyville Police Department ("LPD"), Libertyville Chief of Police Patrick Carey ("Carey"), Libertyville Police Sergeant James Finn ("Finn") (together "Libertyville Defendants"), and Lake County State's Attorney Michael Waller ("Waller") (together with Libertyville Defendants, "Defendants") alleging violations of 42 U.S.C. § 1983, false arrest, and malicious prosecution and seeking both injunctive and declaratory relief. Specifically, in Count I, which is brought under § 1983, Yachnin alleges that Defendants violated her constitutional rights when they arrested and charged her pursuant to a "No Refusal Weekend." Yachnin alleges that the procedures associated with the Village's "No Refusal Weekend" represent an unconstitutional policy because they: (1) violate her Sixth Amendment rights to counsel and to confront witnesses; (2) violate her due process rights; (3) violate her Fifth Amendment rights against self-incrimination; (4) violate her right to privacy; (5) violate her right to equal protection; (6) violate the rights guaranteed to her under Illinois law and the Illinois Vehicle Code; (7) resulted in her false arrest; and (8) resulted in her being falsely charged with criminal contempt. In Count II, Yachnin alleges, pursuant to § 1983, that the Libertyville Defendants falsely arrested her because they lacked probable cause for the initial vehicle stop and for the subsequent detention due to the contempt charge brought against her. In Count III, Yachnin alleges that the Libertyville Defendants maliciously prosecuted her when they pursued criminal contempt proceedings against her.

The Libertyville Defendants and Waller separately move to dismiss. As an initial matter, the Court notes that the LPD is a "non-suable entity" because it is "merely an instrumentality" of the Village and has "no independent legal existence apart from" the Village. Thiel v. Libertyville Police Dep't, 1994 WL 673069 at *2 (N.D. Ill. Nov. 28, 1994) (Norgle, J.); see also Gray v. City of Chi., 159 F. Supp. 2d 1086, 1089 (N.D. Ill. 2001) (dismissing claims against Chicago Police Department because it is "not a suable entity" and "does not have a separate legal existence" from the city of Chicago). Because Yachnin has also sued the Village, her claims against the LPD are dismissed with prejudice and the LPD is dismissed from the case. For the following reasons, the Court grants Waller's Motion to Dismiss Count I with prejudice and he is dismissed from the case; the Court grants the Libertyville Defendants' Motion to Dismiss Count I with prejudice; denies the Libertyville Defendants' Motion to Dismiss regarding Count II; and grants the Libertyville Defendants' Motion to Dismiss Count III.

STATEMENT OF FACTS

The following facts are taken from Yachnin's Complaint and are assumed to be true for purposes of this Motion to Dismiss. See Murphy v. Walker, 51 F.3d 714, 717 (7th Cir. 1995). The Court, at this stage, may also examine certain documents included in Defendants' Motions to Dismiss that are referred to in Yachnin's Complaint and that are central to her claims. See Albany Bank & Trust Co. v. Exxon Mobil Corp., 310 F.3d 969, 971 (7th Cir. 2002). The Court therefore considers Waller's Petition for Rule to Show Cause why Yachnin should not be held in contempt, attached as Exhibit C to the Libertyville Defendants' Motion to Dismiss (R. 13), because it is referred to in Yachnin's Complaint and is central to several of her claims.

Yachnin is a resident of Libertyville, Illinois. (Compl. ¶ 2.) On the night of August 29, 2008, Yachnin was driving her car in Libertyville. (Compl. ¶¶ 16, 22.) Yachnin was obeying all traffic laws, did not commit any moving violations, and at all relevant times her car was in good and proper working order. (Compl. ¶¶ 17-24.)

At approximately 11:30 p.m. on August 29th, Finn pulled Yachnin over. (Compl. ¶ 26.) Finn ordered Yachnin to perform a roadside sobriety test, which she performed barefoot on uneven pavement. (Compl. ¶ 28.) Yachnin was then placed under arrest and taken to the LPD. (Compl. ¶¶ 28, 31.) Finn and the other officers that were present then provided Yachnin with a copy of a warning of the consequences that Yachnin faced, pursuant to the Illinois Vehicle Code, if she refused a breathalyzer test. (Compl. ¶ 29.) Finn specifically advised Yachnin that she could refuse to take a breathalyzer test, but that if she refused, her license would be summarily suspended for six months. (Compl. ¶ 30.)

Yachnin refused to take the breathalyzer test at the LPD. (Compl. ¶ 31.) At that point, Finn informed Yachnin that Libertyville had established a "No Refusal Weekend" policy that included the weekend on which Yachnin was arrested, pursuant to which no motorist would be permitted to refuse a breathalyzer test. (Compl. ¶ 32.) To that end, police officers on "No Refusal Weekends" may seek a search warrant to compel persons refusing to take a breathalyzer test to take one or allow a blood sample to be drawn. (Compl. ¶ 33.)

Yachnin was taken to the Vernon Hills Police Station. (Compl. ¶ 36.) While Yachnin was kept in the rear of a police car, Finn appeared before Judge Charles Johnson to request a search warrant. (Compl. ¶¶ 37-38.) Yachnin was not allowed to participate in the proceedings before Judge Johnson: specifically, she was not able to speak to Judge Johnson; she was not provided with counsel; and she was not permitted to confront or cross-examine any witnesses. (Compl. ¶¶ 40-43.) Judge Johnson signed a search warrant, based on information provided by Finn, that allowed Finn to search Yachnin's person and ordered Finn to take a breath or blood sample from Yachnin. (Compl. ¶39.)

Finn told Yachnin that Judge Johnson had issued a search warrant that required her to take a breathalyzer test or provide a blood sample. (Compl. ¶ 44.) Yachnin refused to do either and no breathalyzer was administered or blood sample taken. (Compl. ¶ 45.)

The Libertyville Defendants subsequently sought and received approval from Waller to charge Yachnin with criminal contempt for violating the court-ordered search warrant. (Compl. ¶48.) Waller filed a Petition for Rule to Show Cause due to Yachnin's refusal to comply with the search warrant. (R. 13, Exb. C.) Pursuant to the contempt of court charge, Yachnin was required to appear at a bond hearing on August 30, 2008. (Compl. ¶ 48.) She was incarcerated overnight, for thirteen hours, until the bond hearing. (Compl. ¶ 49.) Yachnin posted a $20,000 personal recognizance bond on August 30, 2008, at which point she was released. (Compl. ¶ 51.)

On October 10, 2008, Yachnin filed a Motion to Dismiss the criminal contempt charge. (Compl. ¶ 52.) On October 27, 2008, the Village and Waller attempted to amend the charges against Yachnin by filing a petition for adjudication of indirect contempt. (Compl. ¶ 53.)

A bench trial was held and Yachnin was found not guilty of the offense of driving under the influence ("DUI") by Judge Patrick Lawler. (Compl. ¶ 55.) Judge Lawler also found that there was no probable cause to pull over Yachnin's car in the first place. (Id.) On October 5, 2009, Judge Lawler dismissed the indirect criminal contempt charge against Yachnin, finding that while she was the subject of the court-ordered search warrant, she was not under order of the court. (Compl. ¶ 56.)

Yachnin initiated the current suit on August 26, 2010.

STANDARD OF REVIEW

When considering a motion to dismiss under Rule 12(b)(6), the Court accepts as true all facts alleged in the complaint and construes all reasonable inferences in favor of the plaintiff. See Murphy, 51 F.3d at 717. To state a claim upon which relief can be granted, a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ.

P. 8(a)(2). "Detailed factual allegations" are not required, but the plaintiff must allege facts that, when "accepted as true . . . 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In analyzing whether a complaint has met this standard, the "reviewing court [must] draw on its judicial experience and common sense." Iqbal, 129 S. Ct. at 1950. When there are well-pleaded factual allegations, the Court assumes their veracity and then determines if they plausibly give rise to an entitlement to relief. Id. A claim has facial plausibility when the pleaded factual content allows the Court to draw a reasonable inference that the defendant is liable for the misconduct alleged. See id. at 1949.

DISCUSSION

I. Count I

Defendants move to dismiss Count I of Yachnin's Complaint for failure to state a claim upon which relief may be granted. Specifically, Defendants allege that Yachnin lacks standing to seek an injunctive remedy and that the "No Refusal Weekend" policy does not violate her constitutional rights or any rights afforded to her under Illinois law. Moreover, Finn claims that his actions are protected by qualified immunity and the Village claims it cannot be found liable absent a constitutional violation or, alternatively, because Yachnin has failed to properly plead a Monell claim.

A. Standing

Defendants first challenge Yachnin's standing to seek injunctive relief.

Article III of the United States Constitution limits the jurisdiction of the federal courts to actual "Cases" and "Controversies." Unless a case or controversy is presented, no federal court has the jurisdiction to decide whether a federal, state, or local law is constitutional. Golden v. Zwickler, 394 U.S. 103, 110 (1969). A plaintiff "must demonstrate standing separately for each form of relief sought." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 185 (2000); City of L.A. v. Lyons, 461 U.S. 95, 109 (1983) (plaintiff had standing to seek damages but not to seek injunctive relief against abusive police practices). "As a general rule, the fact that a person was previously prosecuted for violating a law is insufficient by itself to establish that person's standing to request injunctive relief." Schirmer v. Nagode, 621 F.3d 581, 585 (7th Cir. 2010) (citation omitted). To establish standing to seek injunctive relief, a plaintiff must show that: (1) she is under threat of an actual and imminent injury in fact; (2) there is a causal relation between that injury and the conduct to be enjoined; and (3) it is likely, rather than speculative or hypothetical, that a favorable judicial decision will prevent or redress that injury. See id.

i. Likelihood that Injunction will Prevent an Injury

Taking the third element first, the Court finds that any injury Yachnin may face from a future "No Refusal Weekend" is speculative. The Court has not certified the class that Yachnin seeks to represent and, as such, Yachnin may not, at this stage, represent all persons arrested or all persons who may be arrested in the future pursuant to a "No Refusal Weekend." See Campbell v. Miller, 373

F.3d 834, 836 (7th Cir. 2004) (where district court has yet to certify a class, plaintiff may not rely on "the prospect that other arrested persons may be subjected" to the same treatment he is now challenging as unconstitutional).

Moreover, while Yachnin is challenging the "policy" of "No Refusal Weekends," she also concedes that the "No Refusal Weekends" occur "from time to time" (Compl. ¶ 34) and are therefore not routine. See Lyons, 461 U.S. at 110 (noting that new constraints on when police may use the stranglehold technique at issue weakened the plaintiff's standing claim). Yachnin further concedes that the order compelling her to give a breath or blood sample was issued after Finn first conducted a field sobriety test and then participated in a probable cause hearing before a neutral judge to obtain a search warrant.

Yachnin presents herself as a law-abiding citizen and does not allege that she plans to drive while intoxicated beyond the legal limit in the future. See Schirmer, 621 F.3d at 586 ("A plaintiff must show that she has 'an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and [that] there exists a credible threat of prosecution thereunder.'") (citations omitted); Robinson v. City of Chi., 868 F.2d 959, 966 (7th Cir.1989) ("Because the various plaintiffs' future conduct presumably will give the police no probable cause to arrest them, they cannot expect that they will encounter the police or, if they did, that the police would again detain them").*fn1 Nor can Yachnin claim that she satisfies the "capable of repetition yet evading review" doctrine because that "applies . . . only when repetition is likely to embroil the same parties to the dispute." Robinson, 868 F.2d at 967 (citations omitted). As previously stated, the Court has not addressed Yachnin's class certification claims and she has not demonstrated a likelihood that she will be arrested for DUI in the future because nothing in the record suggests that she is a repeat offender. See Campbell, 373 F.3d at 836 ("Only if [plaintiff] is apt to be arrested and searched again would prospective relief be apt, and nothing in this record suggests that [plaintiff] is a repeat offender.") Therefore, Yachnin is unable to demonstrate that it is likely, rather than speculative or hypothetical, that she will be subjected to a compelled breathalyzer or blood sample test in the future.

More importantly, as discussed below, the Court finds that Yachnin did not suffer any constitutional injury from the procedures associated with the Village's "No Refusal Weekend." Therefore, she does not have standing to seek injunctive relief.

B. Sixth Amendment and Due Process Claims

Yachnin alleges that the hearing to issue a search warrant was a "critical stage" and, as such, she was entitled to her Sixth Amendment rights and due process protections. Defendants move to dismiss this element of Count I because Yachnin cannot demonstrate constitutional rights to appear at, to have counsel for, or to ...


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