Seals v. Nicholl

• Decision Date: 30 October 1973
• Docket Number: No. 73 C 693.,73 C 693.
• Citation: 378 F. Supp. 172
• Parties: Robert SEALS, Individually and on behalf of all others similarly situated, Plaintiff, v. William J. NICHOLL, Individually and in his official capacity as Commanding Officer, Automotive Pounds Section, Chicago Police Department, and James B. Conlisk, Jr., Individually and in his official capacity as Superintendent, Chicago Police Department, Defendants.
• Court: U.S. District Court — Northern District of Illinois

378 F. Supp. 172

Robert SEALS, Individually and on behalf of all others similarly situated, Plaintiff, v. William J. NICHOLL, Individually and in his official capacity as Commanding Officer, Automotive Pounds Section, Chicago Police Department, and James B. Conlisk, Jr., Individually and in his official capacity as Superintendent, Chicago Police Department, Defendants.

No. 73 C 693.

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

October 30, 1973.

Mark Spiegal, Robert H. Smith, Mandel Legal Aid Clinic, Chicago, Ill., for plaintiff.

Michael S. Jordan, Richard Curry, Corp. Counsel, Chicago, Ill., for defendants.

MEMORANDUM OPINION

WILL, District Judge.

Plaintiff has brought this civil rights action under 42 U.S.C. § 1983 for damages and declaratory and injunctive relief for the seizure, impoundment and destruction of his automobile by the Chicago Police Department, allegedly pursuant to orders and instructions issued by defendants relating to the disposition of automobiles in the possession of arrestees. The jurisdiction of the court is asserted under 28 U.S.C. §§ 1343(3) and 1343(4) and 28 U.S.C. §§ 2201 and 2202.

Plaintiff's request for designation of this suit as a class action under Rule 23(a) and (b), Fed.R.Civ.P., has already been denied. Defendants' motions to dismiss the complaint for failure to state a claim upon which relief can be granted and for lack of jurisdiction over the subject matter and the parties have also been denied along with their motion for summary judgment.¹ The motion now before the court is for summary judgment in favor of plaintiff on the issue of liability. For the reasons set out below, plaintiff's motion will be granted.

I

Plaintiff Seals was arrested late in the evening of October 7, 1972, after being observed carrying a battery from a 1964 Pontiac to his own 1959 Thunderbird. Both cars were parked in a private lot adjoining a grocery store from which plaintiff had just emerged. When questioned by police officers, plaintiff showed them the keys and bill of sale to his own car, the Thunderbird, but had no other legal proof of ownership as to either vehicle. He was then placed under arrest, advised of his constitutional rights and transported to the station where he was charged with petty theft of the Pontiac's battery. The next morning he appeared with one of the arresting officers in the Circuit Court of Cook County where his bond was set at $500. Being unable to meet his bond, he remained in jail for 18 days until October 25, 1972, when the charges against him were dropped and he was released.

Plaintiff's Thunderbird, as mentioned above, was parked in the private parking lot where he was arrested. The car's front end was flush against the brick wall adjoining the south side of the lot and was blocking neither the street, driveway nor sidewalk. The evening he was arrested and during the next day, the arresting officers made various checks on the serial number of the Thunderbird to both local and national auto theft services and found that there was no report of a stolen vehicle of that number and description. However, twenty-four hours after the arrest, at 10:40 p. m. the evening of October 8, 1973, the arresting officers ordered the Thunderbird towed from this lot to Auto Vehicle Pound #2, marking the Vehicle Tow Report that it was seized as "prisoner's property." As such, it could not be held for evidence, forfeiture or any other purpose, and once at the pound, had to be released immediately to anyone who presented proper evidence of ownership and paid towing and accrued storage fees.

Pursuant to normal procedure, the officer at the pound inquired of the office of the Secretary of State to determine the registered ownership of the vehicle. Upon learning it was owned by plaintiff Seals, a Chicago Police Department form notice was sent certified mail, return receipt requested, to Seals at the address given on the automobile registration form, telling where the car was being held and that he would lose all right and interest in it if he did not claim it and pay towing and storage fees within fifteen days. No reference was made to any opportunity to challenge the seizure in order to avoid the payment of fees.

This notice was returned to the police department undelivered. At the time it was sent, defendants' agents at the pound had in their possession the Vehicle Tow Report which clearly indicated that the car was seized as prisoner's property, but no attempt whatsoever was made to inquire whether or not plaintiff was in jail, as he was, and to send notice there or to inform him of what was about to happen to his automobile.

Plaintiff never learned of the impending loss of his car. On October 26, 1972, the day after Seals' release, since no one had claimed it, the Thunderbird was destroyed. Plaintiff first found out about its seizure and subsequent destruction when he made inquiries about it on October 30, 1972.

The initial seizure of the automobile, the failure to provide any procedural opportunity to contest the validity of the seizure, and the inadequacy of the notice sent to plaintiff's home are all challenged as violative of plaintiff's rights under the Fourth, Fifth and Fourteenth Amendments to the United States Constitution.

II

The first issue raised is the validity of the initial seizure of plaintiff's Thunderbird. Our review of the challenged orders and regulations of the Chicago Police Department lead us to conclude that, whether or not they are valid, this particular seizure was in violation of those rules, rather than in conformance with them as both plaintiff and defendants here contend. Police Department Special Order #69-66 states that immediate tows may be ordered by department members for "Prisoner's Property." The instruction sheet for filling out the Vehicle Tow Report Form, CPD-5045 (12/70), specifies three situations when a tow will be authorized of a vehicle under the control of a person when he is arrested. The first is when the prisoner himself requests it. The second is where the car cannot be parked legally and continuously and no arrangement can be worked out for moving it to a legal place. And, the third is where the car is to be retained for evidence or further investigation.²

While, in their brief and supporting affidavits, defendants allude to all three of these situations in their attempt to justify the seizure of plaintiff's car, the uncontested facts show that none are applicable. First, plaintiff did not request a tow of his automobile. Consequently, defendants' protestations that this tow was an accommodation to the arrestee's desire to protect his property and, as such, in his own best interests, are clearly unwarranted.

Second, defendants argue the seizure was valid because, inter alia, it constituted a hazard, was in a state of disrepair, and was appropriately towed as a nuisance to the public way. These assertions can be subsumed under the single purported justification that the vehicle was illegally parked. However, an examination of the uncontested facts and the applicable statutes and ordinances reveal no violation of the state's or city's traffic laws by the location of plaintiff's car. As noted above, the car was not in or on a public way but was parked in a private parking lot owned by a nearby grocery store. Its front end was flush against a brick wall and it was blocking neither street, driveway or sidewalk. Thus, it could not constitute a hazard or obstruction to traffic. The Department's own Training Bulletin, Vol. XIII, Number 35, states:

The Department will NOT tow a motor vehicle from a "public parking lot" "private parking lot" or "private property where parking is encouraged." . . . . Private property where parking is encouraged includes parking lots maintained without charge to the customers for their convenience, e. g. at shopping centers, supermarkets, restaurants, etc. Unauthorized parking on such premises is not a violation of the law and therefore no citations will be issued in these situations. (emphasis supplied)

Since it is not disputed that the car was parked on private property where parking is encouraged, the arresting officers were acting in defiance of the department's own order in having plaintiff's car towed.

The final justification for the towing of a prisoner's car is if it is needed as evidence or for further investigation. Once again, defendants' brief and affidavits contain references to this basis for the seizure in such statements as "I concluded that the vehicle might by useful and necessary to serve as evidence should a later verification of the title of said vehicle demonstrates that Mr. Seals had no interest or right to it," (Heard affidavit, p. 2); and that the automobile and its contents were "evidence and contraband intimately connected with the alleged offense," for which Seals was arrested. (Defendants' brief, p. 4). However, these assertions fly in the face of the fact that plaintiff's car was not ordered towed or held as evidence or for further investigation. The pound to which it was sent was not directed to hold the car, and could not have done so. It had to be released to any individual who produced the proper title and paid the accrued fees. Had the officers wanted the car to be retained as evidence, they would have had to fill out a series of questions on the Tow Report pertaining to that type of seizure, and would have ordered the car sent to an entirely different Auto Pound. The answer to the complaint itself admits that the auto was "not seized either as contraband, evidence or for forfeiture." (Complaint ¶ 14)

A wholly separate issue is whether or not this vehicle could have been seized for evidence or investigation without first obtaining a warrant. At the time of ordering the tow, more than 24 hours after the arrest, the officers had already determined that the car had not been reported as stolen and either had or could have determined that it was...