Chachere v. Chicago et al

Filing 40

MEMORANDUM Opinion and Order written by the Honorable Gary Feinerman on 1/26/2017.Mailed notice.(jlj, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MICHAEL CHACHERE,

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Plaintiff,
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vs.
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CITY OF CHICAGO, DANIELLE DEERING, and CORY )
JUNIOUS,
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Defendants.
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16 C 2401
Judge Gary Feinerman

MEMORANDUM OPINION AND ORDER
Michael Chachere brought this suit against the City of Chicago and two of its police
officers, Danielle Deering and Cory Junious, under 42 U.S.C. § 1983 and Illinois law, alleging
that his home was unlawfully searched, that he was unlawfully detained on groundless charges,
and that the personal property taken upon his arrest was unlawfully destroyed. Doc. 1.
Defendants answered many of the claims, Doc. 13, but the City moved under Federal Rule of
Civil Procedure 12(b)(6) to dismiss the property destruction claims, Doc. 14. The motion is
granted.
Background
On a Rule 12(b)(6) motion, the court assumes the truth of the complaint’s well-pleaded
factual allegations, though not its legal conclusions. See Zahn v. N. Am. Power & Gas, LLC, 815
F.3d 1082, 1087 (7th Cir. 2016). The court must also consider “documents attached to the
complaint, documents that are critical to the complaint and referred to in it, and information that
is subject to proper judicial notice,” along with additional facts set forth in Chachere’s brief
opposing dismissal, so long as those additional facts “are consistent with the pleadings.” Phillips
v. Prudential Ins. Co. of Am., 714 F.3d 1017, 1020 (7th Cir. 2013). The facts are set forth as

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favorably to Chachere as those materials allow. See Pierce v. Zoetis, Inc., 818 F.3d 274, 277
(7th Cir. 2016). In setting forth those facts, the court does not vouch for their accuracy. See Jay
E. Hayden Found. v. First Neighbor Bank, N.A., 610 F.3d 382, 384 (7th Cir. 2010).
On October 14, 2014, Deering and Junious conducted a warrantless search of Chachere’s
home. Doc. 1 at ¶¶ 5-7. Asserting that the search turned up guns and that Chachere confessed to
owning them, the officers arrested him for unlawful possession of firearms. Id. at ¶¶ 8-9, 11. In
fact, the officers had no reason to think any guns found were Chachere’s, and they falsified the
confession. Id. at ¶¶ 10, 11. As a result, Chachere spent over four months detained at the Cook
County Jail on unfounded gun charges, which were ultimately dismissed. Id. at ¶¶ 12-13.
When Deering and Junious arrested and booked Chachere, they took and placed into
storage his wallet, cell phone, and necklace. Id. at ¶ 21. The officers did so pursuant to Chicago
Police Department Special Order S07-01-01, which sets forth procedures for inventorying,
storing, and returning personal property taken from arrestees. Doc. 18 at 16-19. Adhering to
that policy, the City did not send the wallet, cell phone, and necklace along with Chachere to the
jail, but instead inventoried and stored them in the police department’s “Evidence and Recovered
Property Section.” Doc. 1 at ¶¶ 17, 21; Doc. 18 at 3-4, 16.
To retrieve inventoried property, an arrestee has two options: (1) go to the police
department in person; or (2) designate someone else to do so. Doc. 1 at ¶ 23; Doc. 18 at 4, 16.
An arrestee detained at the jail of course cannot go to the department in person, and the City
knew from experience that many detainees struggled to secure assistance from others to retrieve
their property. Doc. 1 at ¶ 20. Nevertheless, the special order imposes a thirty-day limit on the
retention of seized property, after which it may be destroyed. Id. at ¶ 19; Doc. 18 at 21.

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Chachere was detained for more than four months after his arrest and was unable to find
another person to claim his property. Doc. 1 at ¶¶ 12, 23; Doc. 18 at 4. As a result, his wallet,
phone, and necklace were destroyed. Doc. 1 at ¶ 24. Although Chicago Municipal Code § 2-84160(b) obligates the City to make reasonable efforts to give notice of the procedure for retrieving
seized property, the City failed do so here. Doc. 18 at 5, 21.
Discussion
Chachere’s property destruction claim invokes the Fourth Amendment, the Fifth
Amendment’s Takings Clause, and the Fourteenth Amendment’s Due Process Clause. Doc. 18
at 8-13.
I.

Fourth Amendment
Chachere alleges that the City’s destruction of his personal property violated the Fourth

Amendment. The Fourth Amendment prohibits “unreasonable … seizures.” U.S. Const. amend.
IV. A seizure of personal property occurs when there is “some meaningful interference with an
individual’s possessory interests in [his] property.” Lee v. City of Chicago, 330 F.3d 456, 460
(7th Cir. 2003) (alteration in original). The initial seizure of Chachere’s property upon his arrest
was lawful. See Illinois v. Lafayette, 462 U.S. 640, 646 (1983) (“At the stationhouse, it is
entirely proper for police to remove and list or inventory property found on the person or in the
possession of an arrested person who is to be jailed.”). The question here is whether the City’s
subsequent destruction of his property violated the Fourth Amendment.
Lee answers this question, holding that the Fourth Amendment does not apply to the
government’s retention or treatment of property following its initial seizure: “Once an individual
has been meaningfully dispossessed, the seizure of the property is complete, and once justified
by probable cause, that seizure is reasonable. The amendment then cannot be invoked by the

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dispossessed owner to regain his property.” 330 F.3d at 466. Chachere attempts to distinguish
Lee on the ground that it involved property seized as evidence, Doc. 18 at 11, but nothing in Lee
suggests that its holding is limited to seizures that have a law enforcement purpose. To the
contrary, the Seventh Circuit has made clear that Lee applies no matter the justification (or lack
thereof) for the initial seizure. See Gonzalez v. Vill. of W. Milwaukee, 671 F.3d 649, 660 (7th
Cir. 2012) (“Lee’s holding that a seizure occurs upon the initial act of dispossession does not
depend on the legality of the seizure. Stated differently, continued retention of unlawfully seized
property is not a separate Fourth Amendment wrong.”).
As Lee explained, limiting the Fourth Amendment’s scope to the initial property seizure
is consistent with the Seventh Circuit’s consistent rejection of the concept of a “continuing
seizure.” 330 F.3d at 463-65. The Seventh Circuit recently reaffirmed its position in Bell v. City
of Chicago, 835 F.3d 736 (7th Cir. 2016), holding that the Fourth Amendment did not apply to
the City’s failure to return a seized vehicle because “the seizure … is complete when the officer
or agent seizes and impounds the vehicle.” Id. at 741. Chachere correctly observes that the
Seventh Circuit’s rejection of the “continuing seizure” theory is before the Supreme Court in
Manuel v. City of Joliet, 136 S. Ct. 890 (2016). But unless and until the Supreme Court says
otherwise, this court remains bound by circuit precedent. See Jansen v. Packaging Corp. of Am.,
123 F.3d 490, 495 (7th Cir. 1997) (en banc). Thus, at this juncture, the City’s failure to return
seized property must be evaluated under the Fifth and Fourteenth Amendments. See Bell, 835
F.3d at 741 (“[T]he Due Process Clause of the Fourteenth Amendment can be used to challenge
post-seizure procedures and the City’s continued retention of [the plaintiffs’] vehicle.”); Lee, 330
F.3d at 466 (holding that “the Fifth and Fourteenth Amendments’ texts, histories, and judicial
interpretations can better aid a court in balancing the competing interests at stake”); id. at 466 n.5

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(“Other courts have likened continued retention of evidence as a taking without just
compensation.”).
II.

Fifth Amendment Takings Clause
Chachere alleges that the destruction of his personal property amounts to a taking without

just compensation in violation of the Fifth Amendment. The City contends that the takings claim
should be dismissed as unripe under Williamson County Regional Planning Commission v.
Hamilton Bank of Johnson City, 473 U.S. 172 (1985), because Chachere has neither sought nor
been denied compensation at the state level. Doc. 14 at 4.
In Williamson County, “the Supreme Court articulated a special ripeness doctrine for
constitutional property rights claims which precludes federal courts from adjudicating land use
disputes until: (1) the regulatory agency has had an opportunity to make a considered definitive
decision, and (2) the property owner exhausts available state remedies for compensation.”
Muscarello v. Ogle Cnty. Bd. of Comm’rs, 610 F.3d 416, 422 (7th Cir. 2010); see also Gamble v.
Eau Claire Cnty., 5 F.3d 285, 286 (7th Cir. 1993) (“[T]he landowner cannot complain that his
constitutional right has been denied until he exhausts his remedies for obtaining a compensation
award or equivalent relief from the state.”). Put another way, Williamson County provides that,
“if a state provides adequate procedures for seeking just compensation, a property owner cannot
state a takings claim in federal court until she has used these procedures and been denied just
compensation.” Black Earth Meat Mkt., LLC v. Vill. of Black Earth, 834 F.3d 841, 847 (7th Cir.
2016). This doctrine applies with equal force to claims based on takings of personal property.
See Sorrentino v. Godinez, 777 F.3d 410, 413 (7th Cir. 2015).
Although he concedes that Williamson County applies to his takings claim and that he has
not pursued relief at the state level, Chachere argues that his failure to do so should be excused

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because any state suit would have been futile. Doc. 18 at 12. The Williamson County doctrine
has a futility exception that applies if relief is “inadequate or unavailable” under state law.
Sorrentino, 777 F.3d at 414. But the Seventh Circuit has held that Illinois law as a general
matter provides remedies when detained persons are deprived of their personal property. See id.
at 413 (“Even when no Illinois constitutional provision or statute provides a remedy for a
particular taking, ‘the common law, which affords a remedy for every wrong, will furnish the
appropriate action for the redress of such grievance.’”) (quoting Roe v. Cook Cnty., 193 N.E.
472, 473 (Ill. 1934)); see also Gates v. Towery, 331 F. Supp. 2d 666, 672 & n.4 (N.D. Ill. 2004).
Chachere counters that the Illinois courts are closed to him on the facts of this case, citing the
state appellate court’s treatment of two immunity statutes, 745 ILCS 10/2-201 and 745 ILCS
10/4-103, in Black v. Dart, 28 N.E.3d 884 (Ill. App. 2015). Doc. 18 at 13. According to
Chachere, Black immunizes the City and its officers from any suit he might bring arising from
his property’s destruction.
To demonstrate Williamson County futility, a plaintiff must do more than conjure a
chance, or even a likelihood, that the state judiciary would reject his claim. To the contrary,
where, as here, the State offers an applicable cause of action, futility turns not on whether “the
property owner is likely to prevail,” but on whether the State has in fact “established … its
refusal to pay just compensation.” SBG Fin. Servs., Inc. v. Consol. City of Indianapolis-Marion
Cnty., 235 F.3d 1036, 1038 (7th Cir. 2000). Given this, a federal court faced with a Williamson
County futility argument should not “guess what a state court is likely to do” with a claim it
never had a chance to consider, unless it is quite clear that the state judiciary would close its
doors to claims of its ilk. Ibid. In other words, in all but the exceptional case, “the proceeding
belongs in state court even if the plaintiff is convinced that it will lose.” Id. at 1039.

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Black does not foreclose Chachere from seeking and obtaining relief in state court. Black
affirmed a grant of immunity to the Cook County Sheriff in a suit concerning the failure to return
a detainee’s clothing upon his release from jail, but it did so on forfeiture or waiver grounds,
because the plaintiff failed to argue the point on appeal, and not because the court agreed with
the Sheriff on the merits of its immunity defense. 28 N.E.3d at 888 (“[T]he plaintiff failed to
assert any challenge to the Sheriff’s immunity defense throughout the proceedings below, and
concededly forgoes any such argument on appeal.”). It follows that Black does not establish that
it would be futile for Chachere to seek relief in state court for the destruction of his property. On
this point, the court finds persuasive, and adopts the analysis of, Conyers v. City of Chicago, 162
F. Supp. 3d 737, 741-44 (N.D. Ill. 2016).
Because Chachere was required to seek just compensation from the state judiciary, and
because he has not shown that doing so would be futile, his takings claim is dismissed as unripe.
III.

Fourteenth Amendment Due Process Clause
Finally, Chachere alleges that the destruction of his property violated due process.

Before it may turn to the merits, the court must address whether Williamson County applies to—
and thus bars—this claim as well. As the Seventh Circuit has repeatedly held, Williamson
County “applies with full force to due process claims (both procedural and substantive) when
based on the same facts as a takings claim.” Greenfield Mills, Inc. v. Macklin, 361 F.3d 934, 961
(7th Cir. 2004); see also Black Earth, 834 F.3d at 847 (same, procedural due process); Daniels v.
Area Plan Comm’n of Allen Cnty., 306 F.3d 445, 453 n.5 (7th Cir. 2002) (same, substantive due
process); River Park, Inc. v. City of Highland Park, 23 F.3d 164, 167 (7th Cir. 1994) (same,
procedural and substantive due process). So, the question here is whether Chachere’s due
process claim rests on the same facts as his takings claim.

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Black Earth sets forth the governing analysis. The case concerned a prototypical land use
dispute: activities at a slaughterhouse were disturbing its neighbors, which prompted the
defendant village to tighten enforcement of municipal ordinances, deem the slaughterhouse a
nuisance, and, ultimately, require it to relocate. 834 F.3d at 844-46. The village’s actions
jeopardized the slaughterhouse’s financing from a local bank, the loss of which caused it to
close. Id. at 846-47. So the slaughterhouse sued, alleging a procedural due process violation.
Ibid. The claim implicated four distinct interests: “(1) a liberty interest in the occupation of
slaughter; (2) a property interest in the non-conforming use; (3) the right to use the property for a
slaughterhouse purpose; and (4) the plaintiff’s interest in its financing agreement with [the local
bank].” Id. at 848. To resolve the village’s Williamson County defense, the Seventh Circuit had
to determine which of those four claims “are really takings claims in disguise.” Id. at 847. The
first and fourth claims survived because they alleged deprivations of “interests independent of
the property itself.” Id. at 848. But the second and third claims, concerning use of the
slaughterhouse’s physical plant, were barred because they were “archetypal takings claims.”
Ibid.
Under Black Earth, then, Williamson County applies to due process claims whenever the
alleged violations infringe interests in physical property of the sort for which the Takings Clause
guarantees compensation. That rule applies here, given that the City’s actions directly affected
(by destroying) his physical property. See Dewitt v. City of Greendale, 599 F. App’x 588, 59091 (7th Cir. 2015) (holding that the district court correctly dismissed due process claims as
unripe under Williamson County where the plaintiff alleged that the city improperly demolished
his modular home); Greenfield Mills, 361 F.3d at 961-62 (holding that Williamson County
required dismissal of procedural due process claims where alleged procedural flaws during a

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state agency’s decision to dredge a pond allegedly caused the destruction of plaintiffs’ property
in a mudslide). It follows that Chachere’s due process claim must be dismissed as unripe.
One could perhaps attempt to distinguish Black Earth and the Seventh Circuit’s other
Williamson County due process cases on the ground that they have involved real property, rather
than personal effects. But Chachere makes no such argument here, and in fact has specifically
asked the court to apply the rule of Black Earth to his due process claim. Doc. 25 at 1-2. He has
accordingly forfeited, if not waived, any argument that Black Earth and its predecessors apply
only to real property. See United States v. Anglin, __ F.3d __, 2017 WL 359666, at *9 (7th Cir.
Jan. 25, 2017) (“A waived claim … is one that a party has knowingly and intelligently
relinquished; a forfeited plea is one that a party has merely failed to preserve.”); G & S Holdings
LLC v. Cont’l Cas. Co., 697 F.3d 534, 538 (7th Cir. 2012) (“We have repeatedly held that a party
waives an argument by failing to make it before the district court. That is true whether it is an
affirmative argument in support of a motion to dismiss or an argument establishing that dismissal
is inappropriate.”) (citations omitted).
Conclusion
For the foregoing reasons, the City’s partial motion to dismiss is granted. Chachere’s
Fourth Amendment property destruction claim is dismissed with prejudice, as its flaw cannot be
cured by repleading, while his takings and due process property destruction claims are dismissed
as unripe.

January 26, 2017
United States District Judge

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