Miles v. Village of Dolton et al

Filing 68

MEMORANDUM Opinion and Order: Enter Memorandum Opinion and Order. For the reasons stated in the accompanying Memorandum Opinion and Order, Defendants' Motion for Summary Judgment 61 is granted. The Clerk is directed to enter Rule 58 judgment in favor of Defendants. Any pending deadlines and hearings are terminated. Civil case terminated. Signed by the Honorable John Robert Blakey on 3/31/2017. Mailed notice(vcf, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LILAH’S, INC.,
Plaintiff,

Case No. 15 CV 5017

v.
SGT. LEWIS LACEY and the
VILLAGE OF DOLTON,

Judge John Robert Blakey

Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff Lilah’s Restaurant Grill and Banquets, Inc. (“Plaintiff”) claims that
Sergeant Lewis Lacey (“Lacey”), a police officer for the Village of Dolton, Illinois,
unconstitutionally seized its liquor license on March 15, 2015. [35] at 3. Plaintiff
further alleges that the Village of Dolton is obligated to indemnify Lacey for any
compensatory damages flowing from his unconstitutional behavior, pursuant to 745
ILCS 10/9-102.1 Id. at 4-5.
Defendants have moved for summary judgment [61], and that motion is
granted, as explained below.

These are the only claims remaining after the Court’s previous rulings [32, 54] on Defendants’
motions to dismiss.
1

1

I.

Background
A. Undisputed Facts2
Plaintiff owns a bar and restaurant (“Lilah’s”) located at 14098 Chicago Road

in Dolton, Illinois. [62] at 1. Kirby Miles (“Miles”) is Lilah’s president and owner.
Id.
During the early morning hours of March 15, 2015, Lilah’s was open for
business with approximately 100 people eating and drinking liquor on the premises.
Id. at 2. At approximately 1:43 a.m., the 911 dispatcher assigned to Dolton received
multiple phone calls reporting “a large disturbance with numerous subjects
fighting” and “a big old fight breaking out” with “possible weapons involved” at
Lilah’s address. Id.
Lacey responded to the subsequent radio dispatch call reporting “a large
fight” at Lilah’s. Id. When Lacey arrived at Lilah’s, he observed patrons fighting
both inside Lilah’s itself and in the restaurant’s outdoor areas. Id. at 3. Lacey
ordered the crowds of people (both inside and outside the restaurant) to leave the
premises, which they did. Id.

Plaintiff’s response to Defendants’ motion for summary judgment was due January 17, 2017. [60]
at 1. Plaintiff, though represented by counsel for the duration of this lawsuit, has failed to file a
response brief, a statement of additional facts, or a response to Defendants’ statement of facts, as
required by Local Rule 56.1. Accordingly, Defendants’ Local Rule 56.1 statements are deemed
admitted, and those same statements [62] form the basis of this section. See L.R. 56.1(b)(3)(C) (“All
material facts set forth in the statement required of the moving party will be deemed to be admitted
unless controverted by the statement of the opposing party.”); Curtis v. Costco Wholesale Corp., 807
F.3d 215, 218-19 (7th Cir. 2015) (“The non-moving party’s failure to admit or deny facts as presented
in the moving party’s statement or to cite to any admissible evidence to support facts presented in
response by the non-moving party render the facts presented by the moving party undisputed.”).
The Seventh Circuit “has consistently upheld district judges’ discretion to require strict compliance
with Local Rule 56.1.” Flint v. City of Belvidere, 791 F.3d 764, 767 (7th Cir. 2015).

2

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After the patrons dispersed, Lacey spoke with Miles. Id. Lacey explained
that the police were issuing a citation for excessive noise due to the large
disturbance, confiscating Lilah’s liquor license (the “License”), ordering the business
closed for the remainder of the night, and reporting the incident in a police arrest
report. Id. Miles then removed the License from the wall and tendered it to the
police. Id. The excessive noise citation was issued, and Lilah’s was closed for the
evening. Id. at 4. Upon leaving Lilah’s, Lacey turned the License over to Dolton’s
Chief of Police. Id.
Later that afternoon, Miles called Riley Rogers, Dolton’s Mayor and local
liquor control commissioner, regarding the incident. Id. at 5-6. Shortly after that
conversation, Miles met with Mayor Rogers, the Chief of Police, and two police
officers at the Dolton Police Station. Id. at 6. After meeting at the police station,
Miles, Mayor Rogers, and the police officers went to Lilah’s, where Miles showed
them videotapes of the early morning fight and interactions between Miles and
Dolton police officers. Id. Two days later, on March 17, 2015, Lilah’s liquor license
was returned. Id.
The excessive noise citation was upheld during an administrative hearing on
September 8, 2015. Id. at 4.

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B. The Illinois Liquor Control Act
Resolving the present motion requires frequent recourse to the Illinois Liquor
Control Act (“the Act”), noted in relevant part below for convenience:
The mayor . . . of each city, village or incorporated town or
his or her designee . . . shall be the local liquor control
commissioner for their respective cities, villages,
incorporated towns and counties, and shall be charged
with the administration in their respective jurisdictions of
the appropriate provisions of this Act and of such
ordinances and resolutions relating to alcoholic liquor as
may be enacted . . . . However, such mayor, president of
the board of trustees or president or chairman of the
county board or his or her designee may appoint a person
or persons to assist him in the exercise of the powers and
the performance of the duties herein provided for such
local liquor control commissioner.
235 ILCS § 5/4-2 (emphasis added).
Each local liquor control commissioner shall also have the
following powers, functions and duties with respect to
licenses . . . 1. To grant and or suspend for not more than
thirty days or revoke for cause all local licenses issued to
persons for premises within his jurisdiction; 2. To enter or
to authorize any law enforcing officer to enter at any time
upon any premises licensed hereunder to determine
whether any of the provisions of this Act or any rules or
regulations adopted by him or by the State Commission
have been or are being violated, and at such time to
examine said premises of said licensee in connection
therewith . . . .
Id. at § 5/4-4 (emphasis added).
If the local liquor control commissioner has reason to
believe that any continued operation of a particular
licensed premises will immediately threaten the welfare of
the community he may, upon the issuance of a written
order stating the reason for such conclusion and without
notice or hearing order the licensed premises closed for not
more than 7 days, giving the licensee an opportunity to be

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heard during that period, except that if such licensee shall
also be engaged in the conduct of another business or
businesses on the licensed premises such order shall not
be applicable to such other business or businesses.
Id. at § 5/7-5 (emphasis added).
II.

Legal Standard
Summary judgment is appropriate if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law. Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir.
2014). A genuine dispute as to any material fact exists if “the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The party seeking summary

judgment has the burden of establishing that there is no genuine dispute as to any
material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In determining
whether a genuine issue of material fact exists, this Court must construe all facts
and reasonable inferences in the light most favorable to the nonmoving party. See
CTL ex rel. Trebatoski v. Ashland School Dist., 743 F.3d 524, 528 (7th Cir. 2014).
III.

Analysis
Plaintiff alleges that Lacey’s confiscation of its License was an unreasonable

seizure under the Fourth Amendment, which provides that the “right of the people
to be secure in their persons, houses, papers and effects, against unreasonable
searches and seizures, shall not be violated . . . .” U.S. Const. amend. IV. A seizure
effectuated without a warrant is per se unreasonable, unless the police can show
that the seizure falls within a previously delineated exception. See Coolidge v. New

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Hampshire, 403 U.S. 443, 474 (1971). Here, it is undisputed that: (1) Lacey seized
the License; (2) the License is property for purposes of constitutional analysis, see
Brunson v. Murray, 843 F.3d 698, 713 (7th Cir. 2016) (“an Illinois liquor license is a
property interest within the meaning of the due process clause”); and (3) Lacey did
not obtain a warrant prior to the seizure.
Defendants have two primary arguments on summary judgment: (1) Lacey’s
seizure of the License was reasonable, pursuant to the “pervasively regulated
business” exception to the Fourth Amendment’s warrant requirement; and (2) Lacey
is entitled to qualified immunity. The Court addresses qualified immunity first, for
reasons that will become apparent.
A.

Qualified Immunity

To determine whether qualified immunity applies, the Court asks “two
questions”: (1) “whether the plaintiff’s allegations make out a deprivation of a
constitutional right”; and (2) “whether the right was clearly established at the time
of defendant’s alleged misconduct.” Werner v. Wall, 836 F.3d 751, 759 (7th Cir.
2016), reh’g and suggestion for reh’g en banc denied (Oct. 20, 2016). The Supreme
Court originally “required categorically” that the Court “conduct these two inquiries
sequentially in order to avoid stagnation in the development of constitutional law.”
Id. In Pearson v. Callahan, however, the Supreme Court relaxed this rule, holding
that “the district courts and the courts of appeals should be permitted to exercise
their sound discretion in deciding which of the two prongs of the qualified immunity

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analysis should be addressed first in light of the circumstances in the particular
case at hand.” 555 U.S. 223, 236 (2009).
Multiple factors in this case counsel in favor of addressing the “clearly
established” prong of the qualified immunity analysis first: (1) Plaintiff, though
represented by counsel, has not filed any response to Defendants’ motion for
summary judgment; (2) a portion of the Act was recently found unconstitutional by
the Illinois Appellate Court, in a decision issued long after the seizure at issue here,
see 59th & State St. Corp. v. Emanuel, --- N.E.3d ---, 2016 WL 7428114, at *5 (Ill.
App. Ct. Dec. 23, 2016); and (3) relatedly, the law governing seizures of this sort is
certainly in flux, as discussed below.
1.

“Clearly Established”

After “qualified immunity is raised, the plaintiff has the burden of
establishing that . . . the law concerning the proffered right was clearly established
at the time the challenged conduct occurred.” Burritt v. Ditlefsen, 807 F.3d 239, 249
(7th Cir. 2015) (internal quotation omitted). If the ostensibly violated constitutional
right was “not clearly established, then the official is immune from suit and the
claim is dismissed.” Denius v. Dunlap, 209 F.3d 944, 950 (7th Cir. 2000).
To be clearly established, “at the time of the challenged conduct, the right’s
contours must be sufficiently clear that every reasonable official would have
understood that what he is doing violates that right and existing precedent must
have placed the statutory or constitutional question beyond debate.” Chasensky v.

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Walker, 740 F.3d 1088, 1094 (7th Cir. 2014) (quoting Humphries v. Milwaukee
Cnty., 702 F.3d 1003, 1006 (7th Cir. 2012)).
The Seventh Circuit has outlined a three-step progression for determining
whether a right is clearly established.

First, the Court looks “to controlling

Supreme Court precedent and our own circuit decisions on the issue.” Denius, 209
F.3d at 950. Binding precedent, however, “is not necessary to clearly establish a
right.” Brokaw v. Mercer Cty., 235 F.3d 1000, 1022 (7th Cir. 2000). Therefore, as a
second step, in “the absence of controlling precedent, we broaden our survey to
include all relevant caselaw in order to determine ‘whether there was such a clear
trend in the caselaw that we can say with fair assurance that the recognition of the
right by a controlling precedent was merely a question of time.’” Id. at 951 (quoting
Cleveland–Perdue v. Brutsche, 881 F.2d 427, 431 (7th Cir. 1989)). A “split among
courts regarding the constitutionality of conduct analogous to the conduct in
question is an indication that the right was not clearly established at the time of the
alleged violation.” Id. Finally, in “rare cases, where the constitutional violation is
patently obvious, the plaintiff may not be required to present the court with any
analogous cases, as widespread compliance with a clearly apparent law may have
prevented the issue from previously being litigated.” Id.
Because “there is an almost infinite variety of factual scenarios that may be
brought into the courtroom, a plaintiff need not point to cases that are identical to
the presently alleged constitutional violation.” Id. at 950. However, “the contours
of the right must have been established so that the unlawfulness of the defendant’s

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conduct would have been apparent in light of existing law.” Cleveland–Perdue, 881
F.2d at 430.
Finally, the Court notes that it applies the foregoing Seventh Circuit
standard mindful of the Supreme Court’s recent per curiam decision in White v.
Pauly, 137 S. Ct. 548 (2017). In that case the Supreme Court found it necessary, in
light of its recent series of “opinions reversing federal courts in qualified immunity
cases,” to “reiterate the longstanding principle that clearly established law should
not be defined at a high level of generality.” Id. at 552 (internal quotation omitted).
The Court also re-emphasized that qualified immunity protects “all but the plainly
incompetent or those who knowingly violate the law.”

Id. (internal quotation

omitted); see also Zinn v. Vill. of Sauk Vill., No. 16-CV-3542, 2017 WL 783001, at *4
(N.D. Ill. Mar. 1, 2017) (describing the “exacting standards for denial of qualified
immunity” after White).
a)

The Burger Standard For Warrantless Searches

To determine whether Plaintiff’s right to be free of the seizure at issue here
was “clearly established,” the Court first turns to New York v. Burger, 482 U.S. 691
(1987).

In Burger, the Supreme Court recognized that since the owner of

“commercial premises in a ‘closely regulated’ industry has a reduced expectation of
privacy, the warrant and probable-cause requirements, which fulfill the traditional
Fourth Amendment standard of reasonableness for a government search, have
lessened application.” Id. at 702 (internal citation omitted). Accordingly, “where
the privacy interests of the owner are weakened and the government interests in

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regulating particular businesses are concomitantly heightened, a warrantless
inspection of commercial premises may well be reasonable within the meaning of
the Fourth Amendment.” Id.
Burger further explained that this “warrantless inspection, however, even in
the context of a pervasively regulated business, will be deemed to be reasonable
only so long as three criteria are met.” Id. First, “there must be a substantial
government interest that informs the regulatory scheme pursuant to which the
inspection is made. Second, the warrantless scheme must be necessary to further
the regulatory scheme. And third, the statute’s inspection program, in terms of the
certainty and regularity of its application, must provide a constitutionally adequate
substitute for a warrant.” United States v. Hamad, 809 F.3d 898, 905 (7th Cir.
2016) (citing Burger, 482 U.S. at 702). Given the record here (including the issue of
qualified immunity and the otherwise lawful entry to the public areas of the
premises in response to a 911 disturbance call), this Court assumes, but need not
ultimately decide in this case, that the Act’s administrative inspection scheme
satisfies the Burger standard.3

Burger authorizes warrantless searches performed pursuant to a regulatory or statutory scheme
that satisfies its tripartite test. See Hamad, 809 F.3d at 905 (Burger sets forth the “standards for
warrantless, administrative inspections of commercial premises in closely regulated industries.”)
(emphasis added); Contreras v. City of Chicago, 119 F.3d 1286, 1290 (7th Cir. 1997) (“The plaintiffs
argue that the inspection failed the test that New York v. Burger . . . established for warrantless
administrative searches pursuant to a regulatory scheme.”) (emphasis added). The Act here
obviously satisfies Burger’s first two criteria. See 59th & State St. Corp. v. Emanuel, --- N.E.3d ---,
2016 WL 7428114, at *5 (Ill. App. Ct. Dec. 23, 2016) (“The first and second criteria set forth in
Burger are not in dispute. There is a substantial governmental interest in regulating the sale of
intoxicating liquor and the warrantless search of premises where liquor is sold is arguably necessary
to protect the safety of the public from the dangers attendant to the sale of intoxicating liquor.”)
(internal citation omitted). As previously mentioned, however, the Illinois Appellate Court has
determined that a portion of the Act appears to falter on Burger’s third hurdle. See id. (“[W]e
conclude, as did the circuit court, that the provisions of both section 4-4-290 of the Code and section
3

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(1)

Warrantless Seizures Under Burger

Burger “did not specifically address whether the seizure of the items, not
expressly permitted by the statute, was a violation of the Fourth Amendment.” See
Copar Pumice Co. v. Morris, No. CIV 07-79, 2008 WL 2323488, at *12 (D.N.M. Mar.
21, 2008) (emphasis added). Other federal courts, however, have answered Burger’s
unresolved question by approving of warrantless seizures, during the course of a
Burger search, in two distinct circumstances.
In the first instance, the seizure remains lawful when it is explicitly
contemplated by the same appropriately-tailored statutory scheme that authorized
the search in the first place. See United States v. Argent Chem. Labs., Inc., 93 F.3d
572, 577 (9th Cir. 1996) (Burger’s exception “extends to seizure without warrant of
what may be inspected without warrant, when Congress so authorizes.”) (emphasis
added); see also Golden Day Sch., Inc. v. Pirillo, 118 F. Supp. 2d 1037, 1045 (C.D.
Cal. 2000) (For “the pervasively regulated business exception to the warrant
requirement to apply not only to searches but also to seizures, the statutory
regulation must expressly authorize seizures.”) (emphasis added).
In the second circumstance, the law enforcement officer conducting a Burger
search must have an independent constitutional basis to seize property uncovered
4-4(2) of the Liquor Control Act in effect when the plaintiff’s premises was searched failed to satisfy
the reasonableness requirement for a search under the fourth amendment,” insofar as they allowed
the officers to enter licensed premises “at any time to investigate any potential violations of the
law.”) (emphasis added). This Court declines to make a similar determination here, however, in light
of: (1) this case’s underdeveloped record; and (2) the Court’s ultimate conclusion regarding Lacey’s
entitlement to qualified immunity. See Doe v. Heck, 327 F.3d 492, 516 (7th Cir. 2003), as amended
on denial of reh’g (May 15, 2003) (“Although we conclude that [the relevant statute] is
unconstitutional as applied to Greendale and John Doe Jr., we are not prepared to hold that this
statutory subsection is so patently unconstitutional as to deny the defendants qualified immunity
from their claims.”).

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during the course of his warrantless inspection.

See Hamad, 809 F.3d at 905

(approving of the warrantless search of defendant’s cigarette store under Burger,
while analyzing the seizure of guns and pills found during the search using the
doctrine of probable cause); Anderton v. Texas Parks & Wildlife Dep’t, 605 F. App’x
339, 345 (5th Cir. 2015) (“Department officials had lawful access to the entire
enclosure [under Burger]. Even if the [illegal] deer were located in areas obscured
by tall grasses and trees, the officials were allowed to venture into such areas and,
once there, the deer would have been in plain view.”); Stegall v. Russo, 138 F. App’x
884, 885 (8th Cir. 2005) (“In the course of the [warrantless Burger] search, they had
authority to ask Stegall if she had a weapon. Because she answered, ‘I might,’ . . .
and a weapon had just been recovered from her boyfriend . . . officers were
authorized to conduct a protective pat-down search for safety.”); see also United
States v. Biswell, 406 U.S. 311, 312-17 (1972) (the relevant statute permitting
warrantless searches of certain businesses did not specifically authorize the seizure
of items located during an inspection, but seizure of two sawed-off rifles revealed
during inspection was constitutional).
In this case, Defendants have not articulated an independent constitutional
basis for the seizure of the License. Instead, Defendants insist that the seizure was
authorized by the Act, under Burger’s “pervasively regulated business” exception.
The Court accordingly turns to the text of the statutory scheme at issue.

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(2)

Plaintiff’s Rights Under The Act Are Not
Clearly Established

The Act explicitly grants Mayor Rogers, as the local liquor control
commissioner, the unilateral authority to temporarily “revoke or suspend” any
liquor license issued by the Village of Dolton, if he determines that the licensee’s
continued operation constitutes an immediate threat to the Village’s welfare. See
supra at 4-5. Mayor Rogers was also fully authorized to: (1) “appoint . . . persons to
assist him”; and (2) “authorize” police officers to “enter” and “examine” licensed
premises. Id.
Thus, under Burger and the explicit language of the Act, Lacey was
authorized to inspect Lilah’s. It is similarly clear that Mayor Rogers, at least, was
imbued with the authority to unilaterally seize the License, given Lilah’s
undisputed violation of the Village’s noise ordinance and the large fight taking place
on the premises. See supra at 2-5. It is not clear, however, whether Lacey was
similarly empowered to seize the License under the Act.
On the one hand, Lacey was clearly allowed “examine” the premises and
“assist” Mayor Rogers in the exercise of his duties, which included the unilateral
revocation of certain licenses for the sake of the Village’s welfare. Id. at 3-5. As
Defendants point out, it would make little sense to craft a statutory scheme under
Burger that: (1) explicitly grants the Mayor authority for unilateral seizures; and (2)
allows the Mayor the delegate his powers, only to conclude that the Mayor may not
delegate this specific power that turns on threats to the Village’s welfare. See [64]
at 11 (would be “wholly impractical and contrary to the [Act’s] reasonable

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regulatory scheme to require that Sgt. Lacey obtain a . . . on-site temporary closure
order from the Mayor, especially where Sgt. Lacey was merely assisting in the
enforcement of the [Act].”).
Conversely, the portion of the Act enumerating the Mayor’s delegable powers
does not specifically cite his ability to unilaterally suspend or revoke licenses, which
might suggest that this ability was not delegated to the officers enforcing the
provisions. See Anderson v. Am. Gen. Life Ins. Co., 19 F. Supp. 3d 785, 789-90 (N.D.
Ill. 2013) (“Under the maxim expressio unius est exclusio alterius . . . when certain
things are enumerated in a statute, the enumeration implies the exclusion of all
other things even if there are no negative words of prohibition.”) (internal quotation
omitted). Adding more uncertainty, the portion of the Act authorizing the Mayor to
unilaterally revoke or suspend a license also requires a written statement, which
apparently was never issued in this case. See supra at *4-5.
The Court declines to venture any further into this thicket. The obvious
ambiguities here cry out for the application of qualified immunity, which “protects
police officers who reasonably interpret an unclear statute.” Thayer v. Chiczewski,
705 F.3d 237, 247 (7th Cir. 2012) (internal quotation omitted); see also Neita v. City
of Chicago, 830 F.3d 494, 499 (7th Cir. 2016) (“An official who reasonably relies on a
facially valid state law may be entitled to qualified immunity if his conduct is later
challenged.”). The Court’s “inquiry is aimed at determining whether a reasonable
person in the officer’s position would have understood his actions to be against the
law at the time he acted,” Canen v. Chapman, 847 F.3d 407, 412 (7th Cir. 2017),

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and a reasonable officer in Lacey’s position could have easily concluded, given the
obvious threats to the Village’s welfare posed by Lilah’s on the morning of March
15, 2015, that they were empowered to seize the License under the Act.
Finally, the Court reiterates that it was plaintiff’s obligation to establish that
“the proffered right was clearly established at the time the challenged conduct
occurred.” Burritt, 807 F.3d at 249. Given the muddied state of the law governing
warrantless seizures and Plaintiff’s total failure to respond to Defendants’ motion,
the Court is left with one conclusion: Lacey is entitled to qualified immunity.
IV.

Conclusion
For the foregoing reasons, Defendant’s motion for summary judgment [61] is

granted.4 The Clerk is directed to enter Rule 58 judgment in favor of Defendants
and against Plaintiff. Civil case terminated.
Date: March 31, 2017

Entered:

____________________________________
John Robert Blakey
United States District Judge

4

Since Lacey is not liable for the underlying seizure, Plaintiff’s indemnification claim against the
Village of Dalton is similarly untenable. See Rebolar ex rel. Rebolar v. City of Chicago, 897 F. Supp.
2d 723, 742 (N.D. Ill. 2012) (“Illinois law exempts public entities from liability ‘for any injury
resulting from an act or omission of its employee where the employee is not liable.’ Because the
Court concludes that the defendant officers are entitled to summary judgment on all claims, plaintiff
has not established the employee liability necessary for indemnification.”) (quoting 745 ILCS § 10/2–
109).

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