Gates v. Towery

• Citation: 507 F.Supp.2d 904
• Decision Date: 24 August 2007
• Docket Number: No. 04 C 2155.,04 C 2155.
• Parties: Elton GATES and Luster Nelson, Plaintiffs, v. Officer B. TOWERY, Star No. 8233, Officer P. Galiardo, Star No. 19174, Officer Echols, Star No. 12329, Officer Collier, Star No. 18240, Philip Cline, Superintendent of Police for the City of Chicago, and the City of Chicago, Defendants.
• Court: U.S. District Court — Northern District of Illinois

507 F.Supp.2d 904

Elton GATES and Luster Nelson, Plaintiffs, v. Officer B. TOWERY, Star No. 8233, Officer P. Galiardo, Star No. 19174, Officer Echols, Star No. 12329, Officer Collier, Star No. 18240, Philip Cline, Superintendent of Police for the City of Chicago, and the City of Chicago, Defendants.

No. 04 C 2155.

United States District Court, N.D. Illinois, Eastern Division.

August 24, 2007.

COPYRIGHT MATERIAL OMITTED

Thomas M. Peters, Law Offices of Thomas Peters, Kevin R. Peters, Law Offices of Kevin Peters, Mary F. Desloover, Law Offices of Mary Desloover, Chicago, IL, for Plaintiffs.

Jonathan Clark Green, Chicago Corporation Counsel, Brian L. Crowe, Allan T. Slagel, John J. Hagerty, Kim Renee Walberg, Suzanne L. Sias, Shefsky & Froelich Ltd., Mara Stacy Georges, City of Chicago Department of Law, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

RUBEN CASTILLO, District Judge.

Plaintiffs, Elton Gates and Luster Nelson (collectively "Plaintiffs"), have brought a class action law suit against the City of Chicago ("the City") and Superintendent of Police, Philip Cline (together, "the City Defendants"), as well as Chicago police officers Brian Towery, Paul Galiardo, James Echols, and Dwayne Collier, who are being sued in their individual capacities (together, "Officer Defendants") (all collectively, "Defendants"). Plaintiffs allege that Defendants violated the Due Process Clause of the Fifth and Fourteenth Amendments as enforced by 42 U.S.C. § 1983 by: seizing money found in the vicinity of a person placed under arrest, issuing an inventory receipt for the money stating that the arrestee will be notified when the money is available for release, and then never providing notice that the money is available. (R. 192-2, Fifth Am. Compl. at 2-4, 6-8.) Plaintiffs also attack the constitutionality of the letters that the CPD mails to narcotics arrestees informing them that their money is available to be picked up, alleging that the letters provide inadequate notice. (R. 370, Pls.' Reply in Support of Summ. J. at 17.) Plaintiffs also have brought state law claims for conversion and replevin, alleging that Defendants ignored their repeated demands for the return of their property, and as a result, unlawfully converted money that rightfully belongs to Plaintiffs. (R. 192-2, Fifth Am. Compl. at 11-12.)

Presently before this Court are the parties' cross-motions for summary judgment. (R. 268, City Defs.' Mot. for Summ. J; R. 313, Pls.' Mot. for Summ. J.; R. 321, Officer Defs.' Mot. for Summ. J.) This will be the sixth opinion issued in this case, including one decision that has been appealed to and affirmed by the United States Court of Appeals for the Seventh Circuit. See Gates v. Towery, 331 F.Supp.2d 666 (N.D.Ill.2004) ("Gates I") (partially granting and partially denying Plaintiffs' motion to reconsider); Gates v. Towery, No. 04 C 2155, 2004 WL 2583905 (N.D.Ill. Nov.10, 2004) ("Gates II") (granting Plaintiffs' motion for class certification), aff'd, 430 F.3d 429 (7th Cir.2005) ("Gates III"); Gates v. Towery, 435 F.Supp.2d 794 (N.D.Ill.2006) ("Gates IV") (partially granting and partially denying Defendants' motion to dismiss); Gates v. Towery, 456 F.Supp.2d 953 (N.D.Ill.2006) ("Gates V") (redefining the `class and partially granting Defendants' motion to dismiss). The extensive procedural history of this case was outlined by this Court in an earlier decision, and will not be recounted here. See Gates V, 456 F.Supp.2d at 957-958. For purposes of the claims under the Fifth and Fourteenth Amendments, the due process class has been divided into a non-narcotics subclass and a narcotics subclass:

(1) All those persons who, after March 23, 2002, and before December 14, 2004, had property taken from them upon their arrests by Chicago police officers provided: a) the criminal charges against them have been resolved in the trial court; b) no forfeiture action was commenced against the seized property; c) the tithe for filing a forfeiture action has expired; d) the property was not inventoried as evidence in any criminal investigation; e) the arrestee was issued an inventory receipt when arrested indicating that the arrestee would be notified when the property was available for pick-up; f) the arrestee never received notice that the property was ready for return; g) the money has not been returned to the arrestee, and h) the arrestee was not arrested for a narcotics offense.

(2) All those persons who, after March 23, 2002, and before December 14, 2004, had property taken from them upon their arrests by Chicago police officers provided: a) the criminal charges against them have been resolved in the trial court; b) no forfeiture action was commenced against the seized property; c) the time for filing a forfeiture action has expired; d) the property was not inventoried as evidence in any criminal investigation; e) the arrestee was issued an inventory receipt when arrested indicating that the arrestee would be notified when the property was available for pick-up; f) the arrestee never received notice that the property was ready for return; g) the money has not been returned to the arrestee; and h) the arrestee was arrested for a narcotics offense.

Gates V, 456 F.Supp.2d at 969-70. Pursuant to these definitions, Plaintiff Gates represents the first due process subclass challenging the inventory receipt; and Plaintiff Nelson represents the second due process subclass, challenging the notice mailed to narcotics arrestees (hereinafter "Pollard" notice). Gates V, 456 F.Supp.2d at 967-68. Both Plaintiffs also represent a supplemental class for purposes of the conversion and replevin state law claims defined as:

All those persons who, after March 23, 2003, had property taken from them upon their arrests by Chicago police officers provided: a) the criminal charges against them have been resolved in the trial court; b) no forfeiture action was commenced against the seized property; c) the time for filing a forfeiture action has expired; d) the property was not inventoried as evidence in any criminal investigation; the arrestee either demanded possession of the money seized or demand would have been futile under the circumstances; and e) the money has not been returned to the arrestee.

Gates V, 456 F.Supp.2d at 970.

Initially, we note that Plaintiffs failed to file a response to the Officer Defendants' motion for summary judgment by the June 22, 2007, deadline set by this Court, instead representing in a July 10, 2007, memorandum to the Court that they do not oppose the dismissal of their claims against the Officer Defendants. (R. 380, Pls.' Resp. to Def. Officers Defs.' Mot. for Summ. J. at 1.) Because Plaintiffs failed to respond to the Officer Defendants' motion for summary judgment and Rule 56.1 Statement of Facts, we grant the Officer Defendants' motion for summary judgment in its entirety (R. 321-1). We resolve each of the remaining motions below.

RELEVANT FACTS¹

The issues in this case are whether arrestees are provided constitutionally adequate notice about the process by which they may reclaim money inventoried by the Chicago Police Department ("CPD") at the time of arrest, and also whether the CPD unlawfully converted the arrestees' property by ignoring their demands for the return of the property. Plaintiffs allege that the Property Inventory CPD-34.523 ("inventory receipt") that all individuals receive at the time of arrest are false and misleading, and the Pollard notice that the CPD's Asset Forfeiture Unit sends to arrestees who had money inventoried following a narcotics-related arrest provides constitutionally inadequate notice.

The constitutionality of the Pollard notice was the subject of previous litigation. In Pollard v. Daley, 87 C 2401 (N.D.Ill. 1987), a class of arrestees sued the City, alleging that the City took money from individuals arrested for narcotics violations at the time of their arrest, but then neither instituted forfeiture proceedings nor returned the money. Gates V, 456 F.Supp.2d at 961. The court subsequently entered a decree that set forth a procedure for notifying future arrestees that their property was available for return. Pursuant to this decree, the City has to send the Pollard notice to the individual's address as provided on the inventory receipt, detailing the amount of money seized, where the individual must go to reclaim the money, and the documentation needed to reclaim the money. (R. 351-2, Not. of Pls.' Supplemental Mot. to Enforce Pollard Consent Decree, Ex. A, Final Consent Decree at 6; R. 276-4, City Defs.' Facts, Ex. 2, Pollard notice.) Despite the Pollard decree, which provides injunctive relief, we found that Plaintiff Nelson could proceed with his class claims because he was not given an opportunity to opt out of the Pollard class, and he is seeking monetary, as opposed to, injunctive relief. Gates V, 456 F.Supp.2d at 966.

I. The Inventory Policy

When a person is arrested, the City's policy is to issue an inventory receipt for cash that is taken from the arrestee and retained by the arresting officers. (R. 334, City Defs.' Resp. to Pls.' Add'l Facts 3.) The CPD inventory policy is mandated by statute, 725 ILCS 5/108 et seq., and is outlined in the CPD's General Orders, which are its internal guidelines. (R. 215, Ex. D, General Orders Re: Inventory System for Property Taken Into Custody.) The CPD issues thousands of inventory receipts for cash each year. (R. 332, City Defs.' Resp. to Pls.' Facts ¶ 42, 63.) Between March 23, 2002, and December 14, 2004, the total dollar value of the cash seized and inventoried involved millions of dollars. (Id. ¶ 64.) Prior to June 22, 2002, the CPD maintained a paper inventory system whereby officers inventoried recovered property by completing a carbon-based Property Inventory form. (R. 306, Pls.' Resp. to City Defs.' Facts ¶ 15.) Arrestees receive the Citizen Copy of the inventory receipt when the money is inventoried....