Conyers v. Fitzpatrick et al
MEMORANDUM Opinion and Order Signed by the Honorable John J. Tharp, Jr on 5/18/2020: For the reasons stated in the accompanying memorandum opinion and order, the defendant's motion for summary judgment 173 is granted, the plaintiffs' mot ion for partial summary judgment 180 is denied, the plaintiffs' motion for reconsideration 201 is denied, and the defendant's motion to exclude 176 is denied as moot. The plaintiffs are directed, per Footnote 12 of the opinion, to submit a list of any Class members who filed a timely opt-out election to the Court's proposed order inbox by 5/26/20. Mailed notice(air, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
BLAKE CONYERS, LAMAR EWING,
and KEVIN FLINT, individually and for
CITY OF CHICAGO,
Judge John J. Tharp, Jr.
MEMORANDUM OPINION AND ORDER
Plaintiffs Blake Conyers, Lamar Ewing, and Kevin Flint, individually and on behalf of a
class, bring claims under 42 U.S.C. § 1983 against the City of Chicago (“City”). The plaintiffs
allege that the City’s policies pertaining to the destruction of personal property seized from
arrestees at the City’s police stations violate the Due Process Clause of the Fourteenth Amendment.
Before the Court are the City’s motion for summary judgment, Def.’s Mot. for Summ. J. (“City’s
MSJ”), ECF No. 173, the plaintiffs’ motion for partial summary judgment, Pls.’ Mot. for Partial
Summ. J. (“Plaintiffs’ MPSJ”), ECF No. 180, the plaintiffs’ motion for reconsideration, Pls.’ Mot.
for Recons., ECF No. 201, and the City’s motion to exclude the opinion and testimony of the
plaintiffs’ expert witness, Def.’s Mot. to Exclude the Op. and Test. of Melissa Gutierrez Kapheim,
ECF No. 176. For the reasons stated below, the City’s motion for summary judgment is granted,
the plaintiffs’ motions for partial summary judgment and reconsideration are denied, and the City’s
motion to exclude is denied as moot.
When an individual is arrested in Chicago, the City requires its police officers to seize all
property in that person’s possession. Pls.’ Local Rule 56.1 Statement (“Pls. Statement”) ¶ 3, ECF
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No. 182. If the arrestee is transferred to the custody of the Cook County Sheriff, City policy dictates
that only certain categories of property—outer garments, U.S. currency totaling less than $500,
one plain metal ring with no stones, government-issued identification cards, prescription
eyeglasses and medications, shoelaces and belts, keys, court documents and Chicago Police
Department (“CPD”) eTrack receipts, and credit and debit cards—accompany the individual to
Cook County Jail. Id. ¶ 5. The City retains and inventories all other personal property. If no one
claims the inventoried property within 30 days of the arrest, the City’s policy has been to treat the
property as abandoned and either destroy it or sell it at auction. Id. ¶ 14.
From December 1, 2011 until December 31, 2013, the City’s policy directed employees to
provide a written Notice to Property Owner or Claimant (“Notice”) to any arrestee who had
property seized. The Notice stated in part:
You may get inventoried property back by following the procedures detailed below.
Information on how to get back inventoried property is also available at
www.ChicagoPolice.org. If you have any questions, please contact the CPD
Evidence and Recovered Property Section ("ERPS") at (312) 746-6777. ERPS is
located at 1011 S. Homan Avenue, Chicago, Illinois 60624 and is open Monday
through Friday (8:00a.m. to 3:00p.m., closed holidays).
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 ERPS. If you do not
contact the CPD to get your property back 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 103/1, 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.
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Ex. 5 to id. City policy also dictated that every arrestee with inventoried property was to receive a
CPD Form 34.523, an itemized receipt also known as a “Copy 4.” City’s Local Rule 56.1(a)(3)
Statement (“City’s Statement”) Ex. D, ECF No. 174.
Plaintiff Conyers was arrested on or about February 26, 2012, while in lawful possession
of an earring, a bracelet and two cell phones. Upon Conyers’s transfer to Cook County Jail, the
City retained these items and subsequently destroyed them after they went unclaimed for 30 days.
Plaintiff Ewing was arrested on or about December 20, 2012, while in lawful possession of a brown
wallet, a debit card, a library card, and two cell phones. The City retained these items upon Ewing’s
transfer to Cook County Jail and destroyed them after they went unclaimed for 30 days. Plaintiff
Flint was arrested on or about January 1, 2013, while in lawful possession of a cell phone and a
ring. The City retained and inventoried the property before destroying it or selling it at auction
after no one claimed it for thirty days.
The plaintiffs subsequently filed suit against the City and alleged violations of the Fourth,
Fifth, and Fourteenth Amendments. In granting the City’s motion to dismiss the Third Amended
Complaint, the Court dismissed the Fourth Amendment claims with prejudice. Mem. Op. and
Order, ECF No. 80. The Court later granted in part and denied in part the City’s motion to dismiss
the Fourth Amended Complaint (“FAC,” ECF No. 81); the Court dismissed the Fifth Amendment
claims without prejudice pending exhaustion of state remedies but allowed the Fourteenth
Amendment claims to proceed. Mem. Op. and Order, ECF No. 95. In the FAC, the plaintiffs put
forth a new Fourteenth Amendment theory in which they argued that the City’s policy of
destroying or selling unclaimed property was not a publicly available policy (e.g., dictated by
statute), and thus the City was required to give individualized notice sufficient to satisfy due
process. The Court agreed with the plaintiffs’ statement of law, explaining that while due process
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does not mandate individualized notice of state law remedies when they are publicly available, see
City of W. Covina v. Perkins, 525 U.S. 234 (1999), such notice is required when the policies are
not generally available to the public. See Gates v. City of Chicago, 623 F.3d 389 (7th Cir. 2010).
The plaintiffs then argued that both the Notice and Copy 4 only referred to monetary
property and thus did not provide any notice as to the procedures required to reclaim non-monetary
items. The City countered that both the Notice and the Copy 4 referred the reader to the CPD
website, where there was full documentation of the relevant policy. The parties disputed, and
continue now to dispute, whether the plaintiffs could use the internet at Cook County Jail to access
the website, and also whether the webpage to which arrestees were directed by the City had been
active during the relevant class period of December 1, 2011 to December 31, 2013.1 The Court,
taking this factual dispute into account, ruled that the FAC adequately alleged a due process claim:
Here, too, the City’s procedures for recovering inmate property were controlled by
an internal City procedure and not by a state statute readily available to the public.
As in Gates, West Covina is therefore inapposite. The question that remains is
whether the City provided notice of that procedure to the point of satisfying due
process. As the Court explained in its prior opinion, the notice provided to
incarcerated individuals did not explain how to obtain the return of non-monetary
personal property so, standing alone, it is insufficient. In response, the City
indicates they provided information on how to recover seized inmate property on
the Chicago Police Department website. Though there is reason to doubt that the
information available on the web was readily available to detainees, ultimately that
is a factual matter disputed by the parties.
Mem. Op. and Order 14-15, ECF No. 95.
After conducting discovery geared toward that factual dispute, the parties filed dueling
motions for summary judgment, the plaintiffs filed a motion to reconsider the previous dismissal
The Court also later granted the plaintiffs’ motion for class certification. Mem. Op. and
Order, ECF No. 138.
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of their Fifth Amendment claim, and the City filed a motion to exclude the plaintiffs’ expert. The
Court will address each motion in turn.
I. The Procedural Due Process Claim
Generally speaking, courts grant summary judgment for the moving party when “there is
no genuine dispute as to any material fact” and those undisputed facts entitle the moving party to
judgment as a matter of law. Fed. R. Civ. P. 56(a). For nonmoving parties to prevail, they must
“set forth specific facts showing that there is a genuine issue for trial.” Ptasznik v. St. Joseph Hosp.,
464 F.3d 691, 694 (7th Cir. 2006) (internal citations omitted). A mere “scintilla” of evidence in
nonmoving parties’ favor is insufficient, as they must demonstrate that there is enough evidence
to support a favorable jury verdict. Id. Here, both sides have moved for summary judgment on the
plaintiffs’ due process claim. “Cross motions must be evaluated together, and the court may not
grant summary judgement for either side unless the admissible evidence as a whole—from both
motions—establishes that no material facts are in dispute.” Bloodworth v. Village of Greendale,
475 Fed. App’x 92, 95 (7th Cir. 2012).
Because during the class period neither the Notice nor the Copy 4 included information on
its face about the procedures for reclaiming non-monetary property, the City’s motion for summary
judgment hinges on the key issue of whether the plaintiffs and class members had access to a set
of more complete instructions that the City claims were on the CPD website during the class
period. As a result of the class certification defining the class as those incarcerated for at least 30
days following their arrest between December 1, 2011, and December 31, 2013, analysis of the
website can be distilled down to three major questions: (1) does the content of the website satisfy
the City’s due process obligations? (2) did Cook County Jail inmates have access to the internet
during the class period? (3) if Cook County Jail inmates did have access, has the City sufficiently
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established that the webpage was active and online during the class period? If all three questions
can be answered affirmatively without any genuine dispute of material fact, then the City has
adequately provided notice of its procedures per Gates.
With respect to the first issue, the additional instructions referred to by the City provide
specific and detailed notice of the procedures in place. The webpage reads, in part:
You may get your inventoried property back by following the procedures detailed
below. If you have any questions, please contact the CPD Evidence and
Recovered Property Section (“ERPS”) at (312) 746-6777. ERPS is located at
1011 S. Homan Avenue, Chicago, Illinois 60624 and is open Monday through
Friday (8:00 a.m. to 3:00 p.m., closed holidays).
Personal 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
If you do not contact the CPD to get your property back within 30 days of
the date on your receipt, the property will be considered abandoned under
Chicago Municipal Code Section 2-84-160 (click here), and the forfeiture
process will begin under Illinois Law, 765 ILCS 1030/1, et seq. (click
If you are in jail or incarcerated, and your receipt is marked “Property
Available for Return to Owner,” you may get personal property returned
to you by designating a representative in writing, pursuant to the
procedures of the facility where you are jailed or incarcerated. You must
have your designated representative bring your receipt, the written
authorization designating your representative and authorizing your
representative to pick up your property, and a photo ID to: Chicago Police
Department Evidence and Recovered Property Section, 1011 S. Homan
Avenue, Chicago, Illinois 60624 during business hours, Monday through
Friday (8:00 a.m. to 3:00 p.m., closed holidays).
City’s Statement Ex. F 1. These instructions, which unlike the Notice and Copy 4, are not limited
to monetary property, make clear that property that goes unclaimed for 30 days will be forfeited.
They detail both the general reclaiming procedure for owners who can appear at the ERPS in
person and also the specific steps required for property owners who are currently incarcerated. The
webpage also provides specific contact information to allow readers to reach the ERPS by phone.
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In short, this notice, if available to the plaintiffs during the class period, satisfies the City’s notice
requirements—a conclusion that even the plaintiffs do not contest. Instead, the plaintiffs focus on
perceived shortcomings of the second and third issues: was internet access available to detainees
at the Jail and was this webpage available during the relevant period?
To address the second issue of website access, the City argues that social workers at Cook
County Jail, known as Correctional Rehabilitation Workers (“CRWs”), played a crucial role in
inmates’ ability to reclaim their property. The City asserts that CRWs commonly served as
intermediaries between the inmates and the agencies, including the CPD, that were in possession
of the individuals’ property. City’s MSJ 5. Furthermore, the City states that CRWs during the class
period were authorized to retrieve (and commonly did retrieve) online information for inmates
who had submitted written requests. Id. at 6. According to the City, the law librarians at Cook
County Jail also performed a similar function and served as an additional avenue to retrieve
information from the internet. The City concludes, therefore, that the plaintiffs could have used
the assistance of either the CRWs or the law librarians to access the website in question. Inmates
could also, per the City, submit requests to the CRWs to contact the ERPS directly by telephone if
they had any lingering questions or concerns. Id. at 7. Depending on the inmate’s security
clearance, CRWs could either facilitate a phone call in which the inmate spoke directly to the
ERPS without having to dial collect,2 or could contact the ERPS on the inmate’s behalf and relay
any questions or concerns. Id.
In response to these assertions, the plaintiffs offer nothing but conclusory and unsupported
statements. For instance, the plaintiffs claim that the CRWs’ function as an internet resource was
merely “theoretical,” and not something that actually occurred at the Jail. Pls.’ Mem. in Opp’n to
CPD units do not accept collect calls.
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Def.’s Mot. for Summ. J. 13, ECF No. 190. They ground this argument by referring to the
deposition of John Mueller, the Cook County Deputy Director of Inmate Services during the class
period, which they summarize in part by explaining that Mueller “stated that he could not recall
any instance in which a correctional rehabilitation worker had provided information from the CPD
website to a detainee.” Id. This summary, however, is misleading. The complete question and
answer cited by the plaintiffs reads as follows:
Q. Do you know -- let me ask you this: Is that something you had ever done back
when you were an actual social worker on the ground?
A. I can't remember for that time period, but the honest situation regarding this is
that the releasing of property and the assistance of obtaining CPD-held property is
a very natural, common occurrence at the jail that they wouldn't necessarily refer
to this or need to refer it for direction on how to do it. We have regular contact with
ERPS to achieve what needs to be done to release the property so we don't -- even
though we had access to it, we wouldn't necessarily need to refer to it for a
Q. Let me ask you this which is, as a supervisor would there be any concerns that
you would have with regard to one of your CRWs getting information from Chicago
police on the web and providing it to an inmate?
A. No, not at all.
Q. This is a practice that's performed by all the CRWs you supervise, correct?
City’s Statement Ex. G 25-26. The full context of the question and response make clear that
Mueller’s inability to remember referred to his own time working as a CRW more than 15 years
prior (from 1994 to 2003), before he had been promoted to deputy director. Reply in Support of
the City of Chicago’s Mot. for Summ. J. 11-12, ECF No. 192. The answer plainly does not, as the
plaintiffs assert, indicate that Mueller could not remember a single example of a CRW providing
CPD website information to a Cook County Inmate. In fact, his full response illustrates just how
routinely—and non-theoretically— CRWs perform the task described by the City.
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The plaintiffs also claim that the City’s position that CRWs freely facilitated internet access
for inmates at the Jail “disregards the contrary deposition testimony of plaintiff Conyers.” Pls.’
Mem. in Opp’n to Def.’s Mot. for Summ. J. 13. The plaintiffs imply that because Mr. Conyers
declared “without hesitation” that he “never had access” to the website, the CRW-assisted internet
access procedure described by the City must not have existed in actuality. Id. Once again, the
plaintiffs take the statement out of context. The complete exchange in Conyers’s deposition is as
Q. Mr. Conyers, either before or after you were arrested on February 26th of 2012,
had you ever gone to the Chicago Police website to see if there was information
there about getting personal property back?
A. I never had access.
Q. Now, I'm not talking about when you were in jail, sir. I'm talking before you
were arrested, did you ever go to that website?
Q: And after you were released from jail, did you ever go to that website to look
Q. Till this day, have you ever gone to the website to look for information?
Q. I presume that you have never directed someone to go to the website to look for
information for you; is that right?
A. That's right, I didn't.
The City of Chicago’s Opp’n to Pls.’ Mot. for Class Certification Ex. E 24:20-25:17, ECF No.
125. The plaintiffs read Mr. Conyers’s testimony to indicate that he never had access to the website
while incarcerated at Cook County Jail, but the line of questioning was focused not on what actions
Mr. Conyers took while in custody, but rather on whether he had sought information about property
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return procedures either before or after he was in custody at the Jail—in other words, only time
periods when he was not incarcerated. Mr. Conyers’s statement, therefore, fails to establish that
he never sought information about Chicago’s property return procedures while in custody at the
In any event, this exchange does nothing to bolster the plaintiffs’ case even if Mr. Conyers
had, in fact, been referring to the period he was in custody at the Jail. That Conyers “never had
access” does not tell us whether information about Chicago’s property return procedures were, or
were not, generally available to arrestees at the Jail. It does not tell us that Conyers tried
unsuccessfully to access the site and obtain the property return instructions, much less contest that
assistance with property return issues was not available in the manner that the City’s evidence
suggests. Indeed, it does not even establish that Ewing and Flint were similarly unable to access
the site. Conyers’ bare statement, even if describing his term of incarceration at the Jail, falls far
short of establishing a material fact dispute about the availability of access to the City’s property
return procedures at the Jail. Because the plaintiffs offer no other meaningful evidence to oppose
the City’s claims—not even an affidavit from Conyers disputing the City’s evidence that the City’s
procedures were generally available to arrestees at the Jail—the Court has no grounds for finding
that Cook County inmates did not have access to the website during the class period. As a result,
the Court agrees with the City that no reasonable jury could agree with the plaintiffs’ assertions
that they did not have access to the CPD website while incarcerated.3
The plaintiffs also introduce a new theory of liability in their response to the City’s motion
for summary judgment in which they claim that it is irrelevant whether the plaintiffs had access to
the website because the Cook County Sheriff’s prisoner handbook wrongly stated that inmate
property was held for 90 days at the jail property office. Pls.’ Mem. in Opp’n to Def.’s Mot. for
Summ. J. 14. The plaintiffs here appear to be conflating multiple municipal agencies and policies.
The handbook, titled “Cook County Department of Corrections Rules and Regulations for
Detainees,” has no bearing on CPD or ERPS policy. Pls.’ Local Rule 56.1(b) Statement Ex. 25.
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That leaves the third and final issue relating to the CPD website, which is whether the City
has sufficiently established that the webpage was active throughout the class period. The City
presents two key pieces of evidence to that end. First, it refers to a screenshot of the website used
in the deposition of Michael J. Mealer that took place on June 13, 2013, in a separate but factually
similar case Elizarri v. Sheriff of Cook County et al, No. 07 CV 02427; City’s Statement Ex. F;
Pls.’ Mem. in Opp’n to Def.’s Mot. for Summ. J. 10. During the deposition, Mr. Mealer, then the
Commander of the Evidence and Recovered Property Section, confirmed that the screenshot was
available on the CPD website “as we sit here today.” Id. 11. Although that response suggests that
the webpage was active for the last 6 months of the class period (June 2013-December 2013), the
plaintiffs rightly argue that the screenshot cannot, in and of itself, substantiate a conclusion that
the website was active between December 2011 and June 2013. Aware of that deficiency, the
City’s second key piece of evidence is a declaration from Mr. Mealer confirming that the
screenshot used in the prior deposition was an accurate representation of the CPD website for the
entirety of the class period. City’s Statement Ex. B ¶¶ 13-14.
In response, the plaintiffs contend that the City has not sufficiently authenticated Mr.
Mealer’s deposition from the Elizarri case. Relying on Specht v. Google Inc., the plaintiffs claim
that Mr. Mealer’s memory alone is not enough to demonstrate that the webpage was active during
the class period. 747 F.3d 929, 933 (7th Cir. 2014) (concluding that authentication of website
screenshots required “more than memory, which is fallible”). That case is easily distinguished
from the present case, however, because the screenshots in Specht were retrieved using a third-
The property held at the jail property office is comprised of the personal items that are allowed to
accompany inmates to the jail, such as keys and ID cards—not the other items that stay behind in
the possession of the CPD. The plaintiffs’ claim with respect to the handbook is thus wholly
irrelevant to the current case.
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party internet archive service. In fact, the plaintiffs’ reliance on Specht is just as misleading as their
previous citations to Mr. Mueller’s and Mr. Conyers’s deposition testimonies, as the full quote
once again paints a much different picture: “But the district court reasonably required more than
memory, which is fallible; it required authentication by someone with personal knowledge of
reliability of the archive service from which the screenshots were retrieved. See United States v.
Bansal, 663 F.3d 634, 667–68 (3d Cir. 2011) (screenshots from internet archive authenticated via
testimony of witness with personal knowledge of how internet archive works).” Specht 747 F.3d
at 933. Here, there is no analogous archive service. Instead, there is contemporaneous deposition
testimony from Mr. Mealer indicating that the webpage was active as of June 2013, as well as a
subsequent declaration specifying that that very same screenshot showed the contents of the
website throughout the class period. The Seventh Circuit’s finding in Specht is thus irrelevant to
the current case, in which the plaintiffs have not otherwise challenged the legitimacy of the
screenshot. Because the plaintiffs provide no evidence of their own that the screenshot was not
posted for the entirety of the class period, the Court has no basis for ruling against the City in that
In summary, the plaintiffs have failed to demonstrate that there is a genuine dispute of
material fact with respect to any of the three website issues. The Court finds that the content of the
website provided sufficient notice of the property return procedures, that Cook County Jail inmates
had access to the internet during the class period, and that the webpage was active and online
during that same period.4 Because the plaintiffs have failed to establish any genuine dispute of fact
The City also touts its statistical analysis indicating that 76.5% of property inventories
were successfully returned to inmates during the class period, and that after the notice was
amended to explicitly refer to both monetary and non-monetary property, the rate “only” increased
to 79.7% and 81.6% in 2014 and 2015, respectively, before dropping again to 78.8% in 2016.
City’s MSJ 10. Although the Court need not rely on these figures in granting summary judgment
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in regards to these three issues,5 the Court finds that the City has sufficiently shown that it provided
the plaintiffs with notice of its property disposal policy, and in turn satisfied its due process
This conclusion leads inexorably to denial of the plaintiffs’ motion for summary judgment,
which is premised on the argument that the City was required to provide individualized notice and
a hearing before depriving them of their property.7 Because due process does not require
for the City, the Court cautions the City from drawing faulty statistical conclusions about the “mere
3.2 percent difference” between the rate in 2014 and that in 2015. To begin, the percentage
difference between the pre-amendment rate of property return and the post-amendment rate is not
3.2% (which is the difference between the rates themselves) but 4.2% (3.2%/76.5%). More
important, considering that the CPD created 233,339 personal property inventories during the class
period, a percentage difference of more than 4% with a sample of that magnitude is assuredly
statistically significant—meaning that it is highly unlikely that the difference is due to chance. The
positive correlation between the amendment to the notice and the rate of property returns therefore
actually cuts against the City’s argument by suggesting that the change in notice may have had a
notable effect on property return rates. The usefulness of the City’s metric is also questionable in
any event both because the data do not separate out incarcerated individuals from those who were
released prior to the expiration of the 30-day window and because the correlation does not control
for the possible effects of any other potentially confounding variables, such other changes in
implementation of the policy, a year-to-year change in the share of inmates with inventoried
property being released from the Jail within 30 days, or any number of other unaccounted factors.
The plaintiffs also argue that the CPD policy is an outlier when compared to similar
policies maintained by other police departments around the country. While those comparisons are
not wholly irrelevant, the key question in the analysis remains whether the CPD’s policy passes
constitutional muster—and the Court has determined that it does.
The parties dedicate significant portions of their briefs to debating whether the plaintiffs’
claim should be considered an express policy claim or widespread custom or practice claim under
§ 1983, and in turn whether they are required to show deliberate indifference. Because the Court
has granted summary judgment for the City on the basis of the website’s content and availability,
it need not resolve this difference of opinion.
The plaintiffs also repeat, albeit very briefly, the argument that they put forth in the motion
to dismiss briefing that the City’s policy “does not follow state law.” Pls.’ Mem. in Support of
Mot. for Partial Summ. J. 3. According to the plaintiffs, Section 720.25(h) of Illinois law requires
the City to return all property to an arrestee upon release, discharge, or transfer to custody of the
Sheriff of Cook County. As the Court explained in its second motion to dismiss opinion, however,
the plaintiffs have misread the law:
As the City points out, Section 720.25(h) of the Illinois Administrative Code states
that “The Chief of police shall determine what personal property, if any, a detainee
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individualized notice of state law remedies that are set forth in materials generally available to the
public, City of W. Covina v. Perkins, 525 U.S. 234, 241 (1999), and because the Court finds that
the undisputed facts establish that the City’s procedures for obtaining the return of property seized
at the time of arrest were generally available to those transported to the Cook County Jail following
arrest, no individual notice was required. The plaintiffs argue that they are entitled to summary
judgment because none of the named plaintiffs or class representatives actually received either the
Notice or the Copy 4 when their property was inventoried. But in light of the Court’s finding above
that the City’s policy satisfied due process because of its availability to inmates at the Jail, the
failure to provide individualized notice does not violate due process.
Further, even if the City’s procedure for obtaining the return of seized property had not
been generally available, the plaintiffs due process claim against the City would still fail because
the plaintiffs have not shown that the City’s alleged failure to provide the Notice and Copy 4 on a
handful of occasions, in the face of an explicit policy to the contrary, constitutes a violation of due
In general, local governments can be held liable for injuries committed solely by their
employees only when the injuries are the result of the “execution of a government's policy or
may retain.” Defs.’ Reply at 6. Further undermining the plaintiffs’ argument is that
the same provision goes on to state return of an inmate’s property is only required
upon “release,” which includes “parole, mandatory supervised release, discharge,
or pardon.” Ill. Admin. Code, Title 20 § 470.20. Of course, this makes sense
because an arrestee who is in custody has no right while in custody to retain with
them the personal property that was in their possession at the time of arrest.
Mem. Op. and Order 13 n.11, ECF No. 95.
The plaintiffs also put forth the same arguments in their motion for partial summary
judgment relating to the evidentiary foundation of the CPD website that they relied upon in their
opposition to the City’s motion for summary judgment. As explained above, those arguments are
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custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to
represent official policy, inflicts the injury. . .” Monell v. Dep't of Soc. Services of City of New
York, 436 U.S. 658, 694 (1978). The Seventh Circuit has expanded upon Monell and required
plaintiffs to show that the constitutional deprivation resulted from “(1) an express policy that, when
enforced, causes a constitutional deprivation; (2) a widespread practice that, although not
authorized by written law or express municipal policy, is so permanent and well settled as to
constitute a “custom or usage” with the force of law; or (3) an allegation that the constitutional
injury was caused by a person with final policymaking authority.” McTigue v. City of Chicago, 60
F.3d 381, 382 (7th Cir. 1995) (cleaned up).
The plaintiffs have not made an adequate showing of any of the three types of Monell
deprivations. To the contrary, the FAC admits that the City maintained an “explicit policy” during
the class period of providing incarcerated individuals with the Notice. FAC ¶ 15. If even the
plaintiffs acknowledge the existence of the policy, then allegations of sporadic violations of that
policy, even if true, do not constitute the types of violations for which the City could be held liable
under Monell. See Parratt v. Taylor, 451 U.S. 527, 543 (1981) (“[T]he respondent has not alleged
a violation of the Due Process Clause of the Fourteenth Amendment. Although he has been
deprived of property under color of state law, the deprivation did not occur as a result of some
established state procedure. Indeed, the deprivation occurred as a result of the unauthorized failure
of agents of the State to follow established state procedure.”). Here, the City’s alleged failure to
provide the plaintiffs and class members with the Notice or Copy 4 represents the type of
“unauthorized failure” described in Parratt.9 In sum, even if the plaintiffs did not receive the
A conclusion buttressed by the City’s report that more than 75% of inventories in the
class period resulted in individuals reclaiming their personal items. See supra note 4. Although the
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Notice or Copy 4, they have done nothing to establish how that deficiency implicates the City in a
violation of their right to due process.10
The plaintiffs also briefly allude to the fact that the City did not “provide plaintiffs with
a hearing before the destruction of their property.” Pls.’ Mem. in Support of Mot. for Partial Summ.
J. 3. They do nothing to explain on what grounds the City was required to offer such hearings
under the Due Process Clause. On that basis alone, the Court could deny this aspect of the
plaintiffs’ motion. But even assuming, arguendo, that the City was required to offer hearings of
some kind, the plaintiffs also fail to show that the procedures in place during the class period did
not satisfy due process hearing requirements. The Supreme Court “consistently has held that some
kind of hearing is required at some time before a person is finally deprived of his property
interests.” Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 16 (1978) (cleaned up). There
is no uniform rule for what such a hearing must entail, but instead it must only be “appropriate to
the nature of the case.” Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 313 (1950). A
hearing that consists of the “opportunity for informal consultation with designated personnel
empowered to correct a mistaken determination” might constitute a “due process hearing” if the
relevant individuals are provided noticed containing information on “where, during which hours
of the day, and before whom” they may contest a deprivation. Memphis Light, Gas & Water Div.
436 U.S. at 16, n.17, 14, n.15.
figure is relatively imprecise, it nonetheless suggests that City employees were, for the most part,
adhering to the explicit policy of providing individuals with the Notice and Copy 4.
The plaintiffs dedicate the bulk of their reply brief to delving into the minutia of the
City’s responses to their Statement of Facts. Pls.’ Reply Mem. in Support of Mot. for Partial
Summ. J., ECF No. 195. In doing so, the plaintiffs seemingly aim to establish that they truly did
not receive copies of either form. Nowhere do they attempt, in any meaningful way, to establish
that not receiving the forms constitutes a colorable violation under Monell.
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Here, the plaintiffs have not even attempted to prove that the City’s procedures were
inadequate. The City’s policy dictated that inmate property was to remain claimable for thirty days,
and the Notice included the business hours and telephone number of the ERPS, as well as the
instructions to access the CPD website where additional information was located. These features
of the City’s policy are sufficient to overcome the plaintiffs’ claims with respect to pre-deprivation
hearings, especially considering the wholly inadequate nature of the plaintiffs’ argument.
In short, the plaintiffs’ motion does not meet its burden to show that a reasonable jury could
only rule in their favor. Their claims with respect to the alleged lack of both individualized notice
and pre-deprivation hearings are unpersuasive. Because the City has established that it provided
constitutionally adequate notice to putative class members, the Court grants the City’s motion for
summary judgment and denies the plaintiffs’ motion for summary judgment on the plaintiffs’ due
II. Plaintiffs’ Motion for Reconsideration
As detailed above, the Court previously granted the City’s motion to dismiss the plaintiffs’
claim that the City’s disposal of their personal property amounted to an unlawful taking in violation
of the Fifth Amendment. Relying on Williamson Cnty. Reg’l Planning Comm’n v. Hamilton Bank
of Johnson City, 473 U.S. 172 (1985), the Court held that the plaintiffs could not maintain an asapplied Fifth Amendment takings claim until they had pursued all available state court remedies.
Mem. Op. and Order 5-11, ECF No. 95. In Williamson County, the Supreme Court held that “if a
State provides an adequate procedure for seeking just compensation, the property owner cannot
claim a violation of the [Takings] Clause until it has used the procedure and been denied just
compensation.” 473 U.S. at 195.
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In Knick v. Township of Scott, Pennsylvania, however, the Supreme Court overruled
Williamson County and held that a takings claim is ripe “as soon as a government takes [one’s]
property for public use without paying for it.” 139 S. Ct. 2162, 2170 (2019). Shortly after Knick
was decided, the plaintiffs filed a motion asking the Court to reconsider its dismissal of the
plaintiffs’ taking claim, as that ruling had been predicated on Williamson County’s now-invalid
state-remedy exhaustion requirement.
In response, the City does not dispute that the premise of the Court’s dismissal of the
plaintiffs’ takings claim has been invalidated by Knick. The City argues that the dismissal should
nevertheless stand, however, because the City did not take the plaintiffs’ property “for public use”
but rather pursuant to the City’s police powers; “no compensable Fifth Amendment Takings
claim,” the City maintains, can be brought against the government if the property at issue is
lawfully seized through the exercise of governmental authority other than the power of eminent
domain.” City’s Response to Pls.’ Mot. to Reconsider 8, ECF No. 207. In the City’s view, because
the CPD was exercising its lawful police powers in seizing the plaintiffs’ personal property when
they were arrested, there was not a compensable taking under the Fifth Amendment. “Property
seized and retained pursuant to the police power is not taken for a ‘public use’ in the context of
the Takings Clause.” AmeriSource Corp. v. United States, 525 F.3d 1149, 1153 (Fed. Cir. 2008).
The City’s argument that in the context of the seizure, retention, and disposal of arrestee
personal property there is no taking for “public use” might be, in the Court’s view, correct, though
not for the reasons stated by the City. As the Court sees it, the City’s argument misunderstands
when the “taking” at issue occurred. The plaintiffs do not contend that the City violated the Takings
Clause by collecting their personal property at the time of arrest; they acknowledge that police
may take possession of such property incident to lawful arrests. Pls.’ Reply in Support of Mot. to
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Reconsider 2, ECF No. 208 (“Plaintiffs do not dispute that the power to seize and inventory
arrestee property is within a municipality’s police powers.”). Rather, the plaintiffs allege that the
unlawful taking in this case occurred when the City destroyed their personal property rather than
return it. That action, the plaintiffs maintain, “is not a valid exercise of police powers because it
fails to ‘promote the public health, the public morals or the public safety.’” Id. (quoting Chicago
B&Q Ry. Co. v. Illinois ex rel. Grimwood, 200 U.S. 561, 592-93 (1906)). The plaintiffs submit
that the Court should reject the City’s police powers argument “because defendant’s sale or
destruction of arrestee property has nothing to do with police powers.” Pls.’ Reply in Support of
Mot. to Reconsider 2.
The Court agrees. The disposal of personal property seized from arrestees is not an action
that has any discernible connection to the exercise of the State’s police powers. At issue is not the
retention and/or disposal of contraband, evidence, or instrumentalities of crime, but rather of items
that were taken solely because detainees are not permitted to retain personal property while they
are in custody. That rationale, the Court will assume, would insulate police from a takings claim
premised on the seizure and retention of personal property while an arrestee remains in custody.
But what is at issue here is not the initial taking and retention of personal property, but rather the
disposal—i.e., the permanent deprivation of that property—by the police. No state “police power”
justifies the act of permanently depriving arrestees of their personal property seized at the time of
arrest when the state has no ongoing interest in retaining or ensuring the disposal of the property.
That is the case here; indeed, Illinois law requires police to return personal property to arrestees
upon release. 20 ILCS 720.25(h). That policy scotches any notion that there is some state “police
power” that justifies the failure to return personal property seized only because an individual was
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arrested. Even if some such justification could be imagined, Illinois has disavowed any use of that
power by requiring the return of such property to the arrestee upon release.
The cases on which the City relies for this proposition are all distinguishable on this basis—
all involve the retention and/or disposition of property as to which the state has an ongoing interest
consistent with the exercise of its police powers. See Bennis v. Michigan, 516 U.S. 442, 446 (1996)
(upholding forfeiture of automobile in which husband committed crime as exercise of state police
power to abate a nuisance; “an owner’s interest in property may be forfeited by reason of the use
to which the property is put”); Kam-Almaz v. United States, 682 F3d 1364 (Fed. Cir. 2012) (return
of computer in non-working condition did not give rise to damages for loss of business resulting
from lack of access to business files because computer had been seized as part of lawful
investigation); Tate v. District of Columbia, 627 F.3d 904, 909 (2010) (impoundment and auction
of auto for unpaid parking tickets effectively a forfeiture based on owner’s unlawful conduct);
Seay v. United States, 61 Fed. Cl. 32 (2004) (no taking where property was retained and damaged
over course of criminal investigation and ultimately returned to owner); Alde v. United States, 28
Fed. Cl. 26, 34 (1993) (aircraft seized and held pending forfeiture proceedings); Jarboe-Lackey
Feedlots, Inc. v. United States, 7 Cl Ct. 329 (1985) (seizure and non-return of meat unlawfully
implanted with a prohibited drug not a taking). There is a fundamental difference between a police
power seizure based on conduct that justifies forfeiture of all property rights to the seized property
and one that offers no basis for such a forfeiture and allows for only a temporary deprivation of
rights of possession with respect to the seized property. The City errs, in the Court’s view, in
arguing that all seizures pursuant to the state’s police powers provide the City with unfettered
license to destroy the property seized. Nothing in Bennis or the other cases relied on by the City
suggests that there can be no compensable taking when the state deprives a property owner of all
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rights to property as to which the state has only temporary custody. To the contrary, saying that
“the Takings Clause does not apply when property is retained or damaged as the result of the
government's exercise of its authority pursuant to some power other than the power of eminent
domain,” Johnson v. Manitowoc Cty., 635 F.3d 331, 336 (7th Cir. 2011), acknowledges that the
scope of the Takings Clause extends to situations in which property is retained or damaged by the
state when—as here—it is not exercising its police powers.
For that reason, the Court agrees with the plaintiffs that the destruction of their personal
property by the state is not justified as an exercise of the state’s police power, even if the initial
seizure and retention of that property was. The destruction of that property was itself a taking of
the plaintiffs’ property independent of the first taking, which was the seizure pursuant to the state’s
Nevertheless, the plaintiffs have done no work to establish whether the destruction of
arrestee personal property constitutes a taking for “public use.” A taking for public use is, as
construed by the Supreme Court, a taking that serves a “public purpose.” Kelo v. City of New
London, Conn., 545 U.S. 469, 480 (2005). And while the Court does not agree with the City’s
view that the disposal of the plaintiffs’ property constituted an exercise of the state’s police powers,
for the plaintiffs to succeed on their motion, they must demonstrate a public purpose for the
destruction of their property. The plaintiffs suggest no public purpose for the second taking (i.e.,
the destruction) of their personal property in their filings nor do they allege any in the operative
complaint,11 which simply alleges that the City’s policy is to treat as abandoned and destroy any
The City’s destruction of the plaintiffs’ property might be characterized, at least in some
cases, as a form of escheatment, but that would not establish a taking for “public use.” Escheat
laws—like the City’s policy of destroying the unclaimed property of arrestees after 30 days—are
premised on the abandonment of property, Delaware v. New York, 507 U.S. 490, 497, 113 S. Ct.
1550, 1555, 123 L. Ed. 2d 211 (1993). As such, they are not “takings” subject to the Takings
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retained personal property of arrestees not claimed within 30 days of the inventory date. FAC ¶ 23.
In fact, the phrase “public use” does not appear a single time in the plaintiffs’ motion or reply. The
plaintiffs, in short, have entirely ignored the public use element of a Takings claim. They have
adduced no evidence and made no argument to show that their property was taken for a public use.
As a result, they have not adequately shown that the City’s policy violates the Taking Clause of
the Fifth Amendment and their motion for reconsideration is denied.
III. City’s Motion to Exclude Opinion and Testimony
Because the Court has granted the City’s motion for summary judgment, denied the
plaintiffs’ motion for partial summary judgment, and denied the plaintiffs’ motion for
reconsideration, the Court need not rule on the City’s motion to exclude the opinion and testimony
of the plaintiffs’ expert witness. That motion is therefore denied without prejudice as moot.
For the reasons stated above, the Court finds as a matter of law that the City’s policies
satisfied the notice and hearing requirements of the Due Process Clause of the Fourteenth
Amendment. The City’s motion for summary judgment, ECF No. 173, is therefore granted and the
plaintiffs’ motion for partial summary judgment, ECF No. 180, is therefore denied. The Court also
finds that the plaintiffs have failed to show that the destruction of their property constituted a taking
for public use under the Fifth Amendment, and thus their motion for reconsideration, ECF No.
201, is denied. Because of those rulings, the City’s motion to exclude the opinion and testimony
of the plaintiffs’ expert witness, ECF No. 176, is denied as moot. Judgment will be entered for the
Clause. Temple-Inland, Inc. v. Cook, 192 F. Supp. 3d 527, 551 (D. Del. 2016) (“A holder generally
has no property interest in abandoned property. . . Thus, there is no unlawful taking when a state
seeks to escheat abandoned property.”).
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City and against the plaintiffs and all members of the certified Class who did not timely opt out of
John J. Tharp, Jr.
United States District Judge
Date: May 18, 2020
Plaintiffs’ counsel are directed to submit a list of any Class members who filed a timely
opt-out election to the Court’s proposed order inbox within 7 days of the entry of this Opinion.
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