Conyers v. Fitzpatrick et al

Filing 138

MEMORANDUM Opinion and Order Signed by the Honorable John J. Tharp, Jr on 9/28/2017. Mailed notice(air, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BLAKE CONYERS, LAMAR EWING, and
KEVIN FLINT, individually and for a class,
Plaintiffs,
v.
CITY OF CHICAGO,
Defendant.

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No. 12 CV 06144
Judge John J. Tharp, Jr.

MEMORANDUM OPINION AND ORDER
Plaintiffs Blake Conyers, Lamar Ewing, and Kevin Flint seek class certification in the
suit they bring against the City of Chicago (the “City”) pursuant to 42 U.S.C. § 1983. Now
proceeding on their Fourth Amended Complaint (“Complaint”), the plaintiffs allege that the City
violated their Fourteenth Amendment due process rights in connection with its policies regarding
the sale or destruction of personal property items seized from arrestees. For the reasons stated
below, the plaintiffs’ motion for class certification is granted.
BACKROUND
The Seventh Circuit has instructed that district courts “should not turn the class
certification proceedings into a dress rehearsal for the trial on the merits.” Messner v. Northshore
Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012). Still, on issues that affect the class
certification analysis, “a court may not simply assume the truth of the matters as asserted by the
plaintiff. If there are material factual disputes, the court must ‘receive evidence . . . and resolve
the disputes before deciding whether to certify the class.’” Id. (quoting Szabo v. Bridgeport
Machines, Inc., 249 F.3d 672, 676 (7th Cir. 2001)). Although it is the plaintiffs’ burden to show
that their proposed class satisfies the requirements of Federal Rule of Civil Procedure 23, they

need not do so “to a degree of absolute certainty;” rather, “[i]t is sufficient if each disputed
requirement has been proven by a preponderance of evidence.” Id. The facts summarized below
are largely undisputed, though in some cases the proponent of certain facts is noted.
When the Chicago Police Department (“CPD”) arrests an individual and takes him or her
into custody, it also removes from that person and inventories certain items of personal property.
See Complaint ¶ 4, ECF No. 81; Opp’n to Mot. to Certify Class (“Opp’n”) at 2, ECF No. 125.
According to the City, this personal property is inventoried at the time of arrest and recorded on
a CPD form known as CPD-34.523, a copy of which—known as “Copy 4”—is provided to the
arrestee and serves as the official “receipt” for the property. See Opp’n at 2. CPD Department
Notices promulgated in 2007 and 2009 set out the City’s explicit policy that for arrestees who
were transferred to the custody of the Cook County Sherriff, the City would retain possession of
all of the arrestee’s property except for outer garments and items falling into nine enumerated
categories: U.S. currency totaling less than $500, one plain metal ring without stones,
government-issued identification cards, prescription eyeglasses, prescription medications,
shoelaces and belts, keys, court documents and CPD “eTrack receipts,” and credit and debit
cards. See Complaint ¶¶ 12, 14; Answer ¶¶ 12, 14.
Since September of 2011, the City’s explicit policy has also been to provide a written
“Notice to Property Owner or Claimant” (“Notice”) to each arrestee whose property the CPD
retained. See Complaint ¶ 15; Answer ¶ 15, ECF No. 99. The Notice that the City provided
through September 2014 set forth the following information about obtaining “Property Available
for Return to Owner:”
If your receipt is marked “Property Available for Return to Owner”
you may get your property back by providing the receipt and a
photo ID at [the Evidence and Recovered Property Section, or
“ERPS”]. If you do not contact the CPD to get your property back

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within 30 days of the date on this receipt, it will be considered
abandoned under Chicago Municipal Code Section 2-84-160, and
the forfeiture process will begin under Illinois Law, 765
ILCS\ 1030/1, et seq.
If you are in jail or incarcerated, and your receipt is marked
“Property Available for Return to Owner,” you may get money
returned to you by sending copies of your receipt, your photo ID
and the name of the facility where you are jailed or incarcerated to:
Chicago Police Department Evidence and Recovered Property
Section; 1011 S. Homan Avenue, Chicago, Illinois, 60624. If the
property is money, a check will be sent to you at the facility where
you are jailed or incarcerated.
Complaint ¶ 16; Answer ¶ 16. The Notice that the CPD provided to arrestees between September
2011 and September 2014 also stated that “[i]nformation on how to get back inventoried
property is also available at www.ChicagoPolice.org.” Complaint ¶ 19; Answer ¶ 19. The Copy
4 of Form CPD-34.523, which the City attached to its brief opposing the motion to certify the
class—and which the plaintiffs do not discuss in their Fourth Amended Complaint, Motion, or
Reply brief—referred to that same website, and included the following language:
Notice to Property Owner or Claimant
This Property Inventory form is your receipt for property
inventoried by the Chicago Police Department (“CPD”). When you
received this receipt, you should have also received a form entitled
NOTICE TO PROPERTY OWNER OR CLAIMANT (the
“Notice”) explaining how you may get back inventoried property.
If you did not receive the Notice, return to the CPD facility where
your property was inventoried and ask Desk Personnel for the
Notice. A complete copy of the Notice is also available at
www.ChicagoPolice.org[.] If you have further questions, please
contact the CPD Evidence and Recovered Property Section at 312746-6777.
Sample Copy 4, ECF No. 125-1; see also Opp’n at 2-3.
Notably, neither Copy 4 nor the Notice explains how an arrestee who remains in custody
for more than 30 days is to obtain the return of personal property other than cash. The plaintiffs

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allege that people who are detained at the Cook County Jail have not been allowed Internet
access, and that as a result, any information at www.ChicagoPolice.org on how to retrieve
inventoried property “is neither published nor generally available” to those detainees. Complaint
¶¶ 20-21. The City denies that any such online information is not available to arrestees. Answer
¶ 21. In this lawsuit, the plaintiffs allege that the City has deprived them and others similarly
situated of their property without the due process guaranteed by the Fourteenth Amendment.
Complaint ¶ 27. The alleged basis for these violations is that there was no adequate procedure to
reclaim their non-monetary property, they were not provided with individualized notice of any
adequate procedure to reclaim such property, they were not afforded a hearing before their
property was sold at auction or destroyed, and they were not afforded a hearing after their
property had been sold or destroyed. Id.
The CPD arrested plaintiff Blake Conyers on February 26, 2012, and transferred him to
the custody of the Cook County Sheriff. Complaint ¶ 29; Answer ¶ 29. The plaintiffs allege that
when he was arrested, Conyers was in lawful possession of an earring, a platinum and diamond
bracelet, and two cell phones, all of which the City inventoried and retained. Compl. ¶ 30.
Conyers wrote a letter to the City’s ERPS seeking the return of his property, and also alleges that
he filed a grievance with the Cook County Jail and asked the jail’s social worker for help in
recovering his property. Fourth Am. Compl. ¶ 31; Answer to Fourth Am. Compl. ¶ 31. In a July
20, 2012 letter, a captain from the ERPS told Conyers that his property “had been destroyed
since it was not claimed within 30 days from the date inventory.” [sic] Fourth Am. Compl. ¶ 32;
Answer to Fourth Am. Compl. ¶ 32.
Plaintiff Lamar Ewing, meanwhile, was arrested by CPD members on December 20,
2012, and was also transferred to the custody of the Cook County Sheriff. Fourth Am. Compl.

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¶ 36; Answer to Fourth Am. Compl. ¶ 36. Ewing says that when he was arrested, he possessed a
brown wallet, a Link card, a Chicago Library card, and two cell phones, all of which the City
inventoried and retained. Fourth Am. Compl. ¶ 37. The plaintiffs allege that in January 2013,
Ewing—who was still incarcerated at the Cook County Jail—prepared a form authorizing his
cousin to pick up his belongings, but that when the cousin went to ERPS, he was not able to
retrieve Ewing’s personal property. Fourth Am. Compl. ¶ 38. In February 2013, Ewing’s
personal property was destroyed. Id. ¶ 39. Finally, the third named plaintiff, Kevin Flint, was
arrested by CPD members on January 1, 2013, and was similarly transferred to the Cook County
Sheriff’s custody. Id. ¶ 43. Flint alleges that at the time, he was in possession of a ring with a
small stone, as well as a cell phone, both of which the City inventoried and retained. Id. ¶ 44.
The complaint alleges that Flint was housed in the Cook County Jail until May 2013, and that he
learned upon his release that the CPD had destroyed his cell phone and his ring. Id. ¶ 45.
Conyers, Ewing, and Flint all testified in depositions in this case that they did not receive
either a Notice or a Copy 4 of Form CPD-34.523 after they were arrested on the dates set forth in
the Fourth Amended Complaint. See Flint Dep. 22:18-22, July 27, 2000; Ewing Dep. 18:14–
19:6, Aug. 22, 2016; Conyers Dep. 10:5-16, 13:6-10, Oct. 21, 2016; see also Opp’n at 5-6, 8.
The plaintiffs had all been arrested on prior occasions as well, and Ewing and Flint testified that
in connection with at least some of those prior arrests, they did not take any steps to try to
recover property that the CPD had inventoried on those occasions. See Flint Dep. 55:18–56:20,
63:22–64:3, 64:24–65:2; Ewing Dep. 47:14-19, 48:9–49:4; Conyers Dep. 11:22–12:1; see also
Opp’n at 5-7.
The three named plaintiffs lodged their Fourth Amended Complaint in this case in April
2015. In February 2016, this Court partially granted the City’s motion to dismiss that pleading,

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finding that the plaintiffs had failed to state a Fifth Amendment claim but allowing them to go
forward on the procedural due process claim they bring under the Fourteenth Amendment. See
Feb. 2016 Op., ECF No. 95. Conyers, Ewing, and Flint now seek an order certifying a class that
they define as follows:
All persons who, following an arrest, had property inventoried as
“available for return to Owner” by the Chicago Police Department
from December 1, 2011 to December 31, 2013, who were then
held in custody for more than 30 days and whose property was
destroyed or sold by the Chicago Police Department.
Mot. to Certify Class at 1, ECF No. 114. For the reasons set forth below, the motion is granted.
ANALYSIS
“To be certified, a proposed class must satisfy the requirements of Federal Rule of Civil
Procedure 23(a), as well as one of the three alternatives in Rule 23(b).” Messner, 669 F.3d at 811
(citing Siegel v. Shell Oil Co., 612 F.3d 932, 935 (7th Cir. 2010)). Rule 23(a) requires that a
proposed class satisfy the requirements of numerosity, typicality, commonality, and adequacy of
representation. See Fed. R. Civ. P. 23(a). The plaintiffs here are seeking certification under Rule
23(b)(3), which requires them to also show: “(1) that the questions of law or fact common to the
members of the proposed class predominate over questions affecting only individual class
members; and (2) that a class action is superior to other available methods of resolving the
controversy.” Messner, 669 F.3d at 811; see also Fed. R. Civ. P. 23(b)(3).
I. Preliminary Issues
The City argues in its brief that this Court need not even reach the question of whether
the plaintiffs have satisfied these Rule 23 requirements—though the City argues they have not—
because the plaintiffs admit that they did not receive the Notice and therefore cannot assert the
Monell theory of liability on which the Fourth Amended Complaint is based. See Opp’n at 11-12.

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In particular, the City asserts that the “central question” in the lawsuit—which it argues has been
the same for some four years— is “whether Plaintiffs can assert Monell liability against the City
based on alleged deficiencies associated with the Notice,” and that because Conyers, Ewing, and
Flint all say they never received they Notice, their injuries are distinct from those alleged in the
complaint. Opp’n at 11. But the City has once again misconstrued the nature of the plaintiffs’
claim. As the plaintiffs point out in their Reply, this Court previously corrected the City’s
reading of the plaintiffs’ current theory when it rejected the City’s argument that the plaintiffs
lacked standing:
The City argues that the plaintiff’s theory continues to be that they
were misled by the notice provided. . . . That is an unreasonable
interpretation of the plaintiff’s claim, however (notwithstanding a
single use of the term “misleading” by the plaintiffs). Whether the
plaintiffs were misled by the notice provided to them is no longer
germane; their argument now is that the City provided an
inadequate procedure to individuals who remained in custody to
obtain the return of their personal property. In the context of this
claim, the plaintiffs need not establish that they relied on the
notice provided because it provided nothing on which to rely; as
the plaintiffs see it, it is as if the City had provided no notice at all.
The gravamen of the complaint now is not that the plaintiffs were
misled into believing that they had a longer period in which to
claim their property, but that they were never provided notice that
they could reclaim their property (all of which was nonmonetary).
Feb. 2016 Op. at 12-13 (emphasis added). The “central question” of the suit, therefore, is not
whether the plaintiffs can assert Monell liability because the City misled them, but whether the
City gave them any information at all about how to retrieve non-cash property. As to that
question, that the three named plaintiffs testified that they did not receive that Notice in
connection with the arrests at issue has no bearing on their class certification bid. 1

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This is not to say that whether the plaintiffs read the information that the City did
provide is not relevant to their individual claims. If the question of the adequacy of the notice is
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The City’s additional Monell-based arguments also miss the mark. The City asserts that
the named plaintiffs cannot pursue a Monell theory because they “concede” that any failure by
the City to provide the Notice upon their arrest would have been a random act in violation of the
City’s explicit policy that the Notice be provided, meaning Monell liability does not apply.
Opp’n at 12. But again, the plaintiffs have alleged that the City failed to provide them with
sufficient notice regarding how to retrieve their property, and that this was the case whether an
arrestee received the Copy 4 and/or the Notice—pursuant to the City’s explicit policy—or not.
Whether the plaintiffs will ultimately succeed on such a theory is a question for another day; this
Court has already declined to dismiss the plaintiffs’ due process claim at the pleading stage and
made clear that they need not show they relied on the Notice, which they admittedly never
received, to succeed on their claim.
The City next argues that the proposed class members are neither identifiable nor
ascertainable because the class definition relies on “subjective criteria” in that it “presumes that
each class member had an interest in reacquiring his or her personal property.” Opp’n at 13. The
City asserts that identifying class members would therefore require this Court to engage in a
time-consuming analysis for each arrestee to determine whether that individual really wanted his
or her property back and made some affirmative effort to recover it. Id. at 14. That is wrong for
at least two reasons. First, the proposed class definition does not include that subjective element;
the proposed class membership criteria are entirely objective. The plaintiffs seek to represent a
class of persons who were arrested, whose property was inventoried by CPD within a defined

resolved in the plaintiffs’ favor (i.e., if the notice is found to be constitutionally inadequate), the
question of whether the plaintiffs bothered to review the information that was provided would be
relevant to whether the lack of damages could have caused any actual damages. But, as noted
infra at 9, proof of damages is not required to establish a due process violation, and the plaintiffs
would be entitled to an award of nominal damages regardless.

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time period, who spent more than 30 days in custody, and whose property CPD sold or
destroyed. These are all objective criteria and that is all that the implicit requirement of
“ascertainability” demands. Mullins v. Direct Digital, LLC, 795 F.3d 654, 657 (7th Cir. 2015)
(rejecting “heightened” conception of ascertainability that would move “beyond examining the
adequacy of the class definition itself to examine the potential difficulty of identifying particular
members of the class and evaluating the validity of claims they might eventually submit”). And
even if the administrative feasibility of identifying class members were relevant to the concept of
ascertainability, it would not pose an obstacle here, where it is undisputed that the City’s own
records identify the arrestees—including by name and address—whose property was seized,
marked as “available for return to Owner, and later destroyed or sold during the class period. See
Mot. to Certify Class at 4-5; Mot. Ex. 2. The City also does not dispute that its own records
reflect which of these arrestees spent more than 30 days in custody, or that the same information
regarding length of custody can be gleaned from records maintained by the Cook County Sheriff.
See Mot. to Certify Class at 5.
Second, as the plaintiffs observe in reply, liability for failing to provide notice does not
turn on an individual’s subjective intent or on whether the violation actually caused any
damages. Even if putative class members suffered no actual injury resulting from inadequate
notice (because, for example, they did not read the notice they did receive), they would be
entitled to nominal damages because “the right to procedural due process is ‘absolute,’” Carey v.
Piphus, 435 U.S. 247, 266 (1978), even when the violation is “not shown to have caused actual
injury,” id. See also, e.g., Calhoun v. DeTella, 319 F.3d 936, 941 (7th Cir. 2003) (“nominal
damages are not compensation for loss or injury, but rather recognition of a violation of rights”).

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To the extent that subjective intent has any relevance, therefore, it is to the issue of
damages. And the Seventh Circuit has repeatedly held that the need for individualized damages
determinations does not defeat class certification. See, e.g., McMahon v. LVNV Funding, LLC,
807 F.3d 872, 875-76 (7th Cir. 2015); Mullins, 795 F.3d at 671; Butler v. Sears, Roebuck & Co.,
727 F.3d 796, 800 (7th Cir.2013) (“[A] class action limited to determining liability on a classwide basis, with separate hearings to determine—if liability is established—the damages of
individual class members, or homogeneous groups of class members, is permitted by Rule
23(c)(4) and will often be the sensible way to proceed.”).
The proposed class definition here is also easily distinguished from that in Haynes v.
Dart, No. 08 C 4834, 2009 WL 2355393 (N.D. Ill. July 29, 2009), to which the City makes its
most developed comparison. See Opp’n at 14. In Haynes, the district court denied a motion to
certify a class of all “current, former, and future pretrial detainees housed at Cook County Jail
suffering from mental illnesses who [had] been deprived of necessary mental health treatment”
during the class period. Haynes, 2009 WL 2355393, at *3. As the district court found in Haynes,
“suffering from mental illnesses” was a criterion too vague to define an ascertainable class, in
part because that phrase raised “basic questions as to how ‘mental illness’ is to be defined and
how it is to be diagnosed.” Id. at *3-4. The court also pointed to the Haynes plaintiffs’ own
allegations that the defendants were “intentionally failing to identify mentally ill inmates by
using inappropriate screening criteria,” meaning that many potential class members had never
received a mental illness diagnosis for the jail. Id. at *4. As a result, that court had “no
assurance” that it would be able to identify class members without relying on time-consuming
individual inquires. Id.

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Here, by contrast, there is no vagueness to any aspect of the proposed class definition,
and the objective requirements for class membership have already been determined and recorded
by the City or the Cook County Sheriff. This Court will not need to embark on individual
analyses, for example, of whether each class member spent more than 30 days in custody—much
less interpret what that objective requirement means—because the City does not dispute that this
information is readily available. Moreover, the City’s argument that some of the proposed class
members that the plaintiffs identify—and whose unsworn declarations they submitted with their
motion—cannot join the class because they were arrested on dates falling outside the class period
actually demonstrates that the proposed class is ascertainable. See Opp’n at 15-17. Individuals
who do not satisfy the class definition can be excluded from the action on the basis of such
objective criteria as the date their property was inventoried upon their arrest, as the City itself—
albeit unintentionally—demonstrates.
Finally, the City also complains that the proposed class definition does not expressly refer
to the notice (either the Copy 4 or the Notice) the City provided. But the dispute here is not that
during the class period some arrestees received a form of notice that was adequate while others
received notice in some other form that was not; it is clear that the question of adequacy of notice
will turn on whether the information provided by the Copy 4 and the Notice, and the availability
of online information, was sufficient to apprise arrestees of what they had to do to get their
property back. It is undisputed, then, that anyone who qualifies as a member of the class, as
defined, received no other notice than that provided by Copy 4 and the additional Notice; adding
reference to those forms would not change the contours of the class and modifying the class
definition on that basis is therefore unnecessary.

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II. Rule 23(a) Requirements
Rule 23(a) requires that a proposed class satisfy the requirements of numerosity,
typicality, commonality, and adequacy of representation. The City does not challenge the
plaintiffs’ satisfaction of the numerosity and representation requirements, and indeed this Court
finds them to be satisfied here. The plaintiffs have also satisfied Rule 23(a)’s typicality and
commonalty requirements, despite the City’s arguments to the contrary.
Rule 23(a)(2) requires that there be “questions of law or fact common to the class,” and
in arguing that the plaintiffs cannot satisfy this requirement, the City relies once again on its
argument that the plaintiffs cannot assert Monell liability because they did not receive copies of
the Notice upon their arrest. See Fed. R. Civ. P. 23(a)(2); Opp’n at 15-16. The City argues that
the plaintiffs therefore have not experienced the “explicit policy” or “standardized conduct”
alleged in the Fourth Amended Complaint, and so “there is no common policy or conduct that
connects or unites” the proposed class members. Opp’n at 16. This argument fails for the same
reasons as the City’s other Monell-related arguments; it ignores this Court’s prior finding that
receipt of the Notice—as opposed to the adequacy of the content of the notice—is no longer
central to the plaintiffs’ claims. As the court’s previous opinion in this case noted, “[t]he
question that remains is whether the City provided notice of [its] procedure to the point of
satisfying due process.” Feb. 2016 Op. at 15. The plaintiffs’ class claim does not turn on whether
the City gave them Copy 4 or the Notice; it turns on whether Copy 4 and the Notice provided
sufficient information about the process required to obtain the return of non-cash property taken
from them at the time of their arrest. If the City failed to provide adequate notice to arrestees
about the process by which to secure the return of non-cash property, then whether a particular
class member received defective notice is irrelevant because that defective notice would not have

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provided an adequate explanation of the required process. The common claim among the class
members is that the notice provided by the City was inadequate, not that they did not receive
something from the City purporting to be notice. The plaintiffs have therefore sufficiently
asserted “a common contention” that is “of such a nature that it is capable of classwide
resolution.” See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011).
The City’s argument that the plaintiffs fail to satisfy Rule 23(a)(3)’s requirement that “the
claims or defenses of the representative parties [be] typical of the claims or defenses of the class”
fails for the same reason. The Seventh Circuit has described the typicality analysis in this way:
A claim is typical if it arises from the same event or practice or
course of conduct that gives rise to the claims of other class
members and her claims are based on the same legal theory. Even
though some factual variations may not defeat typicality, the
requirement is meant to ensure that the named representative’s
claims have the same essential characteristics as the claims of the
class at large.
Arreola, 546 F.3d at 798 (quoting Oshana v. Coca–Cola Co., 472 F.3d 506, 514 (7th Cir. 2006)).
The City again points to the purported significance of the fact that the three named plaintiffs did
not receive the Notice or a Copy 4 of Form 34.523 in connection with their inventoried property,
saying that their testimony to this effect “departs from” the Fourth Amended Complaint’s
allegations regarding the City’s explicit policy of providing those documents to arrestees. See
Opp’n at 16-17. As explained previously in this Opinion, that line of reasoning miscasts the
plaintiffs’ due process claim, which in its current iteration does not turn on receipt of the Notice.
The plaintiffs have satisfied the typicality requirement. Conyers, Ewing, and Flint all had
property inventoried as “available for return to Owner” within the class period, following their
arrest; each of those three plaintiffs was held for more than 30 days; and the CPD destroyed each
of their inventoried property. These facts, which the City does not dispute, fall in line with the

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due process allegations the plaintiffs are pursuing in their Fourth Amended Complaint. The
declarations from the eight proposed class members who were arrested within the class period
also indicate that the plaintiffs’ claims are typical of the claims of the class. Though the City
correctly notes that some of those declarations actually request the return of their property or
otherwise indicate that the arrestee did not know whether the property had been sold or
destroyed—for example, one declaration states “I have no idea what happened to my property,”
see Mot. Ex. 3—this does not make the claims of those who fall within the class definition
inconsistent with the named plaintiffs’ claims. This Court has already found that the class
members are identifiable and ascertainable because the names and addresses of arrestees whose
property was sold or destroyed, and who otherwise meet the class definition requirements, are
recorded. The plaintiffs’ claims thus arise “from the same event or practice or course of conduct”
as the proposed class members, see Arreola, 546 F.3d at 798, and Rule 23(a)’s typicality
requirement is satisfied.
II. Rule 23(b)(3) Requirements
Finally, the plaintiffs are seeking certification pursuant to Rule 23(b)(3), and so must
satisfy that Rule’s predominance and superiority requirements. See Fed. R. Civ. P. 23(b)(3). The
City makes no direct arguments regarding superiority, but says that the plaintiffs have not
adequately shown that “the questions of law or fact common to class members predominate over
any questions affecting only individual members.” See id. “There is no mathematical or
mechanical test for evaluating predominance.” Messner, 669 F.3d at 814. This requirement is
similar to Rule 23(a)’s requirements for commonality and typicality, but the Supreme Court has
made clear that “the predominance criterion is far more demanding.” Amchem Products, Inc. v.
Windsor, 521 U.S. 591, 623-24 (1997); see also Messner, 669 F.3d at 814 (quoting same).

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Predominance may be satisfied where “a ‘common nucleus of operative facts and issues’
underlies the claims brought by the proposed class.” Messner, 669 F.3d at 815 (quoting In re
Nassau Cnty. Strip Search Cases, 461 F.3d 219, 228 (2d Cir. 2006)). If making a prima facie
showing on their claim requires proposed class members to “present evidence that varies from
member to member, then it is an individual question,” but “[i]f the same evidence will suffice for
each member to make a prima facie showing, then it becomes a common question.” Id. (quoting
Blades v. Monsanto Co., 400 F.3d 562, 566 (8th Cir. 2005)) (internal quotations omitted).
Individual questions may well be present; the requirement is only “that those questions not
predominate over the common questions affecting the class as a whole.” Id.
Resorting to hyperbole, the City argues that there are “an astounding number” of
individual questions at issue in this case. Opp’n at 19. Most, however, are variations on the same
theme, which the Court has already rejected—namely, that it matters whether the class member
claims to have received or relied upon what notice the City did provide. Relatedly, the City also
argues that the plaintiffs have not offered any objective method for “identifying or excising”
individuals who voluntarily abandoned their personal property during previous arrests, see id.,
and that the Court would have to make individual inquiries regarding whether class members
took some affirmative step or expressed some desire to recover their personal property within
thirty days. Id. But why? As discussed above, an arrestee’s subjective intent does not bear on the
question of whether the notice provided by the City was constitutionally adequate. The City
cannot dodge liability for providing inadequate notice of the process required to obtain the return
of property by pointing to evidence that many arrestees made no attempt to do so; that would be
akin to rewarding the metaphorical orphans for killing their parents. Given that neither Copy 4
nor the Notice addresses the return of non-cash property, it would not be surprising, or relevant,

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to learn that many arrestees did not take timely action to prevent the City from destroying the
property that it had seized upon their arrests. How could they, if the City did not tell them how?
Another individual issue, the City says, is whether class members who were arrested
during the class period successfully recovered their property such that, according to the City,
those arrestees should be barred from asserting a claim for that arrest or others within the class
period, as they would have clearly had notice of the process for recovering such property. Id. at
20. This argument also falls short. To begin, such persons are excluded from the proposed class
definition, unless they were subsequently arrested again and had personal property seized and
destroyed by the City. And even for that presumably small subset of the proposed class,
managing to obtain the return of property following some prior arrest says little—nothing,
really—about whether the City provided adequate notice of the procedure required to do so. The
same holds true as to whether a class member voluntarily abandoned his or her property on some
prior occasion; that fact (assuming arguendo that it could be established) would have no bearing
on whether the City satisfied due process requirements during the period at issue in this case.
That Plaintiff Ewing, for example, testified in his deposition that he did not make efforts to
retrieve his personal property in 1982 in connection with an arrest—testimony that the City
excerpts in its Opposition brief—has no bearing on whether he received adequate notice about
how to retrieve property that was inventoried after a separate arrest some three decades later. See
Opp’n at 7; Ewing Dep. at 48:9–49:4.
These “individual” questions about intent really go to whether arrestees valued their
property highly enough to seek its return. The City characterizes that question as a critical
individual inquiry necessary to assess the City’s potential liability, but as noted above its
relevance is to the question of damages, not liability. If an arrestee assigned so little value to his

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property that he had no interest in securing its return, even had he known how to do so, then his
claim for damages will be miniscule, but that is an assessment to be made after liability is
determined. Again, “[i]t is well established that the presence of individualized questions
regarding damages does not prevent certification under Rule 23(b)(3).” Messner, 669 F.3d at 815
(citing Wal–Mart, 564 U.S. at 362 (2011); Arreola, 546 F.3d at 801; Hardy v. City Optical, Inc.,
39 F.3d 765, 771 (7th Cir. 1994). Any individual inquiry in this regard, therefore, will not stand
in the way of the plaintiffs’ pursuit of class certification. The plaintiffs have satisfied Rule
23(b)(3)’s predominance requirement.
Finally, that rule’s requirement that a class action be “superior to other available methods
for fairly and efficiently adjudicating the controversy” is also satisfied here, though as previously
noted, the City does not challenge superiority. The central question here is the adequacy of the
notice provided to arrestee’s during the class period; it plainly makes more sense to adjudicate
that common question on a class-wide basis than by means of individual claims. Further, the
plaintiffs assert that only “a small amount of damages” would be available to each individual
class member, so a class action represents the only realistic means of recovery for many potential
claimants. See Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 760 (7th Cir. 2014) (“The district
court might conclude on remand that the class device is superior, because no rational individual
plaintiff would be willing to bear the costs of this lawsuit.”). “If there are genuinely common
issues, issues identical across all the claimants, issues moreover the accuracy of the resolution of
which is unlikely to be enhanced by repeated proceedings, then it makes good sense, especially
when the class is large, to resolve those issues in one fell swoop while leaving the remaining,
claimant-specific issues to individual follow-on proceedings.” Mejdrech v. Met-Coil Sys. Corp.,
319 F.3d 910, 911 (7th Cir. 2003).

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*

*

*

For the foregoing reasons, the plaintiffs’ motion for class certification is granted. The
named plaintiffs may represent the following class:
All persons who, following an arrest, had property inventoried as
“available for return to Owner” by the Chicago Police Department
from December 1, 2011 to December 31, 2013, who were then
held in custody for more than 30 days and whose property was
destroyed or sold by the Chicago Police Department.
A status hearing is set for Thursday, October 12, 2017 at 9:00 a.m.

John J. Tharp, Jr.
United States District Judge

Date: September 28, 2017

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