Grant v. City of Chicago

• Decision Date: 03 October 1984
• Docket Number: No. 83 C 7757.,83 C 7757.
• Citation: 594 F. Supp. 1441
• Parties: Bonnie Lee GRANT and Andrea Barron, on behalf of themselves and all others similarly situated, Plaintiffs, v. CITY OF CHICAGO, a Municipal Corporation; Fred Rice, individually and in his capacity as the Acting Superintendent of the Chicago Police Department; and Lester S. Dickinson, individually and in his capacity as Acting Commissioner of Streets and Sanitation for the City of Chicago, Defendants.
• Court: U.S. District Court — Northern District of Illinois

594 F. Supp. 1441

Bonnie Lee GRANT and Andrea Barron, on behalf of themselves and all others similarly situated, Plaintiffs, v. CITY OF CHICAGO, a Municipal Corporation; Fred Rice, individually and in his capacity as the Acting Superintendent of the Chicago Police Department; and Lester S. Dickinson, individually and in his capacity as Acting Commissioner of Streets and Sanitation for the City of Chicago, Defendants.

No. 83 C 7757.

United States District Court, N.D. Illinois, E.D.

October 3, 1984.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Harry P. Bush/Lynda Wesley, Chicago, Ill., for plaintiffs.

Gregory Wojkowski, Chicago, Ill., for defendants.

MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

Plaintiffs Bonnie Lee Grant ("Grant") and Andrea Barron ("Barron"), on behalf of themselves and others similarly situated,¹ bring this action under 42 U.S.C. § 1983 to challenge the constitutionality of Paragraph 27-435 of the Municipal Code of Chicago, which authorizes the immobilization of a motor vehicle when there are ten or more outstanding traffic violation notices pending against the vehicle's owner.² Plaintiffs allege that this ordinance violates the due process and equal protection clauses of the Fourteenth Amendment,³ the Fourth Amendment⁴ and the bill of attainder and ex post facto clauses of Article 1, § 10⁵ of the United States Constitution. Presently before the Court is the defendants' motion to dismiss all the claims under Fed.R.Civ.P. 12(b)(6) and to dismiss Grant for lack of standing⁶ and plaintiffs' motion for partial summary judgment on their due process claim.⁷ For the reasons set forth below, both parties' motions are granted in part and denied in part.

I. Facts

The immobilization device used by the City is commonly referred to as a "boot" or "Denver boot." When the boot is attached to the wheel of a vehicle, the vehicle cannot be moved. The boot cannot be removed without damaging the vehicle, except by a special mechanism controlled and owned by the City. The City of Chicago, through its sanitation department, has begun to place boots on vehicles which have ten or more outstanding tickets, under the authority of Paragraph 27-435 of the Municipal Code. To have the boot removed, the vehicle owner ("owner") must pay all fines for the outstanding traffic violations or post bond to secure his appearance in the Circuit Court to contest the violations. In either case, the owner must pay a boot fee of $35. If the owner does not contact the City to have the boot removed within forty-eight hours, the vehicle is towed. To obtain release of a vehicle after it has been towed, the owner must pay a towing fee of $45 as well as the boot fee and all fines for the traffic violations or a bond to secure an appearance to contest the violations. An owner is entitled to a post-immobilization hearing to determine the validity⁸ of the booting. The hearing is available within two working days of the request for a hearing.

Plaintiff Barron found her car immobilized by the boot after she had received and failed to respond to 59 traffic tickets. Barron sues on behalf of all similarly situated plaintiffs who have had their vehicles booted. Plaintiff Grant has ten outstanding violations and is subject to having her car booted in the future. She sues on behalf of all plaintiffs who have ten outstanding violations and are therefore threatened with the immobilization of their vehicles by the boot.

II. Standing

Defendants claim that Grant lacks standing to bring this action because she has failed to allege that her car has actually been immobilized by the boot. A plaintiff can only invoke federal court jurisdiction if he or she has suffered "some threatened or actual injury resulting from the putatively illegal action." Linda R.S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973) (emphasis added).

Grant has alleged a threatened injury. "For purposes of ruling on a motion to dismiss for want of standing, both the trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party." Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975). Grant has ten outstanding violations issued by the City of Chicago and thus her car may be booted at any time. If the City ordinance is constitutionally infirm as alleged, she is subject to possible injury by its application to her. Defendants' motion to dismiss Grant for lack of standing is therefore denied.

III. Due Process

The due process clause of the Fourteenth Amendment ensures that no party will be deprived of property without notice and an opportunity to be heard at a meaningful time and in a meaningful manner. Fuentes v. Shevin, 407 U.S. 67, 80, 92 S.Ct. 1983, 1994, 32 L.Ed.2d 556 (1971); Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). The Fourteenth Amendment protection of property has been broadly extended to "any significant property interest." Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971). It is undisputed that the uninterrupted use of one's vehicle is a substantial property interest, and that before the "local government may so interrupt its use, the owner is entitled to due process." Graff v. Nicholl, 370 F.Supp. 974, 981 (N.D.Ill.1974); see also Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 1589, 29 L.Ed.2d 90 (1971); Sutton v. City of Milwaukee, 672 F.2d 644, 645 (7th Cir.1982).

The issue before the Court is whether the procedure currently followed by the City when it boots a vehicle satisfies the basic due process requirements. What is due process varies from case to case. "Due process is an amorphous concept of less than facile application. There are no rigid or universal rules determining what constitutes procedural due process. Indeed, the dictates of that flexible concept vary substantially depending upon the nature of the proceedings." Duby v. American College of Surgeons, 468 F.2d 364, 368 (7th Cir.1972) (citations omitted). Therefore, although it is necessary to afford some process to a person whose vehicle is booted, there is no specific process which must be followed.

A. Pre-deprivation hearing

Plaintiffs allege that due process requires a hearing before deprivation of property absent "extraordinary circumstances." Boddie v. Connecitcut, 401 U.S. at 378-379, 91 S.Ct. at 786. However, the test commonly used today to determine what process is necessary, first stated in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), does not center on the existence of extraordinary circumstances. The Supreme Court, in concluding that no pre-deprivation hearing was required in Mathews, considered three factors for determining whether due process had been afforded. These three factors are:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Id., 424 U.S. at 334-335, 96 S.Ct. at 903. The Seventh Circuit, in applying this test, has concluded that a pre-deprivation hearing is not required in every case, even absent extraordinary circumstances. Brown v. Brienen, 722 F.2d 360, 365 (7th Cir.1983); Sutton v. City of Milwaukee, 672 F.2d 644, 646 (7th Cir.1982).

The first factor we consider herein is the private interest affected. When a vehicle is booted, the owner loses the use of the vehicle and the boot fee. Although the loss of the use of the vehicle is temporary, the loss is not insubstantial. For some an automobile is a virtual necessity for day-to-day living. Bell v. Burson, 402 U.S. at 539, 91 S.Ct. at 1589; Graff v. Nicholl, 370 F.Supp. at 981 (N.D.Ill.1974). Nonetheless, it has been held constitutionally permissible to cut off much more substantial interests, such as disability benefits, Mathews, and the custody of one's children, Lossman v. Pekarske, 707 F.2d 288 (7th Cir.1983), without a pre-deprivation hearing so long as a prompt post-deprivation hearing is available. Other courts specifically have held it permissible to immobilize a car without a pre-deprivation hearing. Sutton v. City of Milwaukee (towing); Gillam v. Landrieu, 455 F.Supp. 1030, 1042 (E.D.La.1978) (booting).

The second factor we examine is the risk of an erroneous deprivation and the probable value of any additional safeguard. The risk of an erroneous deprivation is small. A vehicle is placed on a boot list when it has ten outstanding violations. The process is objective and systematic. There is little risk of an error in judgment by anyone empowered to place boots on vehicles. It is possible that some errors might be avoided if a pre-deprivation hearing were available. But because errors⁹ should be quite infrequent and capable of correction at a prompt post-deprivation hearing, the probable value of a pre-deprivation hearing is relatively low.

The final factor we consider is the government's interest and the burden involved in implementing the additional safeguard. The government has a strong interest in enforcing traffic ordinances for the safety and convenience of the public. The enforcement is impossible if vehicle owners can repeatedly ignore with impunity the sanctions imposed for violation of the ordinances. The boot provides an effective, and possibly the only feasible, means of forcing repeat violators to pay for or contest the tickets they have received. "Because vehicles are, by their nature, movable, and because the violators subject to the immobilization procedure have a history of failing to respond to summonses the `boot' has proved a practical method of...