Gable v. City of Chicago

• Decision Date: 08 July 2002
• Docket Number: No. 01-1941.,01-1941.
• Citation: 296 F.3d 531
• Parties: Casey GABLE, Greg Moore, Lois Kalaga, Alan Kalaga, and Adalberto Montanez, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. CITY OF CHICAGO, a municipal corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

296 F.3d 531

Casey GABLE, Greg Moore, Lois Kalaga, Alan Kalaga, and Adalberto Montanez, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. CITY OF CHICAGO, a municipal corporation, Defendant-Appellee.

No. 01-1941.

United States Court of Appeals, Seventh Circuit.

Argued January 11, 2002.

Decided July 8, 2002.

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Catherine Caporusso (argued), Chicago, IL, for Plaintiffs-Appellants.

Julian Henriques (argued), Office of Corp. Counsel, Chicago, IL, for Defendant-Appellee.

Before: EASTERBROOK, KANNE, and DIANE P. WOOD, Circuit Judges.

KANNE, Circuit Judge.

The plaintiffs are all people whose vehicles were towed to, and subsequently damaged or destroyed at, an impoundment lot located at 701 N. Sacramento Avenue in Chicago ("Lot 6") between July 1995 and May 1999. The plaintiffs brought a class action lawsuit pursuant to 42 U.S.C. § 1983, alleging that the City of Chicago deprived them of due process of law and was liable for these incidents of damage and destruction. The district court granted summary judgment in favor of the City, and we affirm.

I. Background

A. The City's Towing and Impoundment Policies

The City of Chicago Municipal Code (the "Code") authorizes the City to tow and impound motor vehicles in various enumerated circumstances. Lot 6—the only impoundment lot about which the plaintiffs complain—is one of the City-owned impoundment lots. Between 1995 and 1999, a total of 181,911 vehicles were impounded at Lot 6, which covers five square blocks and has only one entrance. Otherwise, the lot is relatively inaccessible due to high chain-link fences and railroad track berms that surround its borders. The City's Department of Streets & Sanitation was responsible for the operation and management of Lot 6 until August 1997, when a private company named Environmental Auto Removal, Inc. ("EAR") was contracted to operate and manage the lot throughout the remainder of the class action period.

The City's policies relating to the towing and impoundment of vehicles are stated in the Code and in a procedural manual created by EAR in 1997. When a vehicle is towed to Lot 6, pound personnel¹ conduct a physical examination of the vehicle and complete a Motor Vehicle Inventory Report. The Inventory Report describes the condition of the vehicle, describes the specific location of the vehicle in the lot, identifies when the vehicle was redeemed and by whom, and if the vehicle was never redeemed, describes the manner and date in which the vehicle was disposed. Pound personnel then enter this information into a daily log book and into a computer system known as the "Hot Desk System," which allows the City to track the location and disposition of all towed vehicles in the City and to respond to inquiries by vehicle owners about the location of their vehicles. For example, the Hot Desk System allows any City pound and several City departments (such as the Police Department and Department of Streets & Sanitation) to determine whether a vehicle is located at Lot 6 by entering the vehicle's license plate number or VIN number into the system.

After a vehicle is towed to Lot 6, pound personnel also access the Secretary of State's database in order to identify the registered owner of the vehicle. Upon obtaining this information, the City has ten days to send a Notice of Impoundment ("Notice Form") to the vehicle owner. The Notice Form describes the vehicle, states when it was towed and the reason for the tow, and identifies the lot in which the vehicle is being impounded. The Notice Form also describes the procedures that allow the vehicle owners to retrieve their vehicles after paying the applicable charges or to obtain a hearing to challenge the impoundment. Finally, the Notice Form states that the vehicle will be disposed of if not retrieved by a certain date.²

When a vehicle owner picks up his vehicle from Lot 6, he has the opportunity to request that pound personnel fill out a claim form, allowing the owner to document any alleged damage or theft that occurred while the vehicle was impounded. The pound employee who completes the claim form is required to verify that the alleged damage accurately reflects the condition of the vehicle and that any property allegedly stolen is not inside of the vehicle.

B. The Plaintiffs' Claims

The plaintiffs filed a one-count complaint in the district court, alleging that the City deprived them, and others similarly situated, of due process of law for four reasons. First, the plaintiffs claimed that the City failed to timely notify vehicle owners that their vehicles had been towed to Lot 6. Specifically, of the 181,911 vehicles that were towed to Lot 6 during the class action period, there were four instances where the vehicle owners did not receive a Notice Form. For example, plaintiffs Casey Gable, Greg Moore, and Brian Johnson were mailed Notice Forms within the required ten-day period to the most recent addresses that each had reported to the Secretary of State. However, none of these plaintiffs received the Notice Forms because the addresses to which the Notice Forms were sent were not the addresses at which any of them still lived—before their vehicles were towed, all three had moved without reporting their address changes to the Secretary of State. Further, although the record is unclear as to the reason, plaintiff Melinda Dimond also did not receive a Notice Form, but subsequently learned that her vehicle had been towed to Lot 6 and retrieved it from the lot four days after it was towed.

Second, the plaintiffs alleged that the City denied to vehicle owners that their vehicles were present at Lot 6 even though it knew or should have known that the vehicles were in fact present there. The record reveals that there were three instances in which this occurred—with respect to plaintiffs Gable, Gene Floriani, and Moore. For example, Gable or her boyfriend called Lot 6 every day for seven days inquiring about whether her vehicle was being impounded there. Pound personnel repeatedly told her that her vehicle was not there. Two weeks after Gable's vehicle was towed, a friend of Gable's who worked in another impoundment lot called Lot 6, and pound personnel told Gable's friend that Gable's vehicle was in fact located at Lot 6 and had been since the day it was towed. Upon learning this, Gable immediately went to the pound and retrieved her vehicle, which had incurred extensive damage while being impounded.

After Floriani's vehicle was towed to Lot 6, he contacted the lot, but pound personnel told him that his vehicle was not there. Two or three days later, Floriani received a call from the Chicago Police Department, informing him that his vehicle was at Lot 6. However, when Floriani arrived at Lot 6, he discovered that it had been damaged to such an extent that he decided to leave it there.

When Moore's vehicle was towed from a friend's driveway, the person towing it told the friend that it was being towed to Lot 6. Thus, five days later, Moore went to a Chicago Police Department precinct, and a police officer entered Moore's license plate and VIN numbers into the Hot Desk System, but the system incorrectly indicated that Moore's vehicle had not been towed. Moore went to Lot 6 later that day, and pound personnel again told him that his vehicle was not being impounded there. For the next several weeks, Moore made inquiries to pound personnel about the whereabouts of his vehicle, and the personnel repeatedly told him that it was not located at Lot 6. Finally, Moore returned to Lot 6 a few weeks after his vehicle had been towed, and a pound employee told Moore that it had been present there but had been disposed of a few days earlier.

Third, the plaintiffs alleged that the City, through its agents, systematically broke into and entered vehicles towed to Lot 6, and stole property from these vehicles. During the class period, there were approximately 1,400 damage and theft claims filed with respect to vehicles towed to Lot 6. It is undisputed that many of the vehicles were accidentally damaged while initially being hoisted by the tow truck or while being transported to Lot 6. With respect to the incidents of intentional damage to the vehicles or theft therefrom, since 1995, there have been only two incidents where pound employees were caught causing damage to or stealing from vehicles impounded at Lot 6, and these employees were immediately fired. On the other hand, there is ample evidence that third parties are mainly responsible for the intentional incidents of damage and theft that have occurred at Lot 6. The record shows that police officers patrolling Lot 6 or pound personnel have often caught third parties stealing from or damaging impounded vehicles. Furthermore, incident reports prepared by EAR reflect that pound personnel have discovered several holes cut in the chain-link fence surrounding Lot 6 and have seen third parties enter the lot through these holes.

In any event, the City has made efforts to reduce the number of damage and theft claims occurring at Lot 6, whether perpetrated by pound employees or by third parties. For example, since at least 1995, police officers are required to conduct routine surveillance of Lot 6 and the area immediately surrounding it. Further, pound employees are required to check the fencing around Lot 6 every morning and must repair any damage they observe to the fence. Perhaps the most significant step the City took to minimize the incidents of damage and theft was to hire EAR to operate and manage Lot 6. Indeed, the City included a clause in EAR's contract that required EAR to "take all necessary precautions to avoid any damage or injury to persons or property, including without limitation City property, any towed Vehicle and any personal property in the Vehicle." Pursuant to the policies in EAR's employee handbook, pound personnel are subject to periodic, random inspections of their...