by Casey J. Bastian

On April 18, 2022, the U.S. Supreme Court declined to issue a writ of certiorari to hear a challenge that the abandoned property policy of the Chicago Police Department (CPD) violates the takings clause of the Fifth Amendment. See: Conyers v. City of Chi., 142 S. Ct. 1669 (2022).

That leaves in place a decision handed down by the U.S. Court of Appeals for the Seventh Circuit on August 18, 2021, which found no constitutional violation in the CPD policy. Because there is no contested issue as to Chicago’s right to seize and inventory property pursuant to an arrest, the Court ruled, it is permitted to manage that seized property.

Of course, the three named plaintiffs in the case were hoping to have a chance to argue that CPD manages their property very poorly. The three — Blake Conyers, Lamar Ewing, and Kevin Flint — were each arrested in separate incidents between February 2012 and February 2013. Each had personal property seized by CPD pursuant to the city’s Municipal Code § 2-84-160 et seq., a 2007 law requiring those arrested by CPD to turn over all but certain property on their person before being transferred into custody of the Cook County Sheriff for detention at the county jail.

Using CPD Notice 07-40, the City advises each owner that his seized property is stored under a unique tracking number in CPD’s Evidence and Recovered Property Section (ERPS). Each arrestee is given an inventory receipt, along with this notice. These forms clearly provide CPD’s website, phone number, and the street address for ERPS, indicating that the arrestee has 30 days to claim the property, or else have a representative do so. After that, the Notice advises, the property will be considered abandoned and forfeiture process begun under Illinois law.

But it can take days after arrest for someone to get out of intake at the jail. He or she is then most likely preoccupied with other legal matters, not to mention arranging for childcare or trying to hold onto a job. These are also generally some of the poorest people in the city, for whom transportation to ERPS to reclaim what was likely a small amount of property isn’t a high priority. As a result, “forfeitures” added 6% to CPD’s annual budget in 2015 — $4.7 million on top of a $77 million budget, according to a report by the Institute for Justice.

Conyers filed the initial complaint against this scheme on August 3, 2012. The additional parties joined and sought class status. After a lengthy procedural history, a fourth amended complaint was filed on April 21, 2015. Plaintiffs argued that the City was engaged in an unlawful taking of property. The Notice was insufficient, they said, since it referenced details of the process found on CPD’s website but not on the form itself. Incarceration made it extremely difficult to access the website, effectively denying them due process. Both parties filed for summary judgment. The district court considered three issues:

• Does the website satisfy due process requirements?

• Did Plaintiffs, while detained in the Cook County Jail, have access to the internet?

• If they had access, was the web page active during the relevant period?

Each party agreed that the content notice on the website was sufficient. The City also brought evidence that the jail offered all detainees a Correctional Rehabilitation Worker (CRW), who is able to provide information from the internet upon request, including information from ERPS. It was also proven that the website was active during the class period.

The district court noted that “[d]ue process demands both adequate notice and an opportunity to be heard before the state may take property.” But it concluded that the procedures in place satisfy these requirements and granted summary judgment in favor of the city, dismissing all counts but a due process claim on February 10, 2016. See: Conyers v. City of Chi., 162 F. Supp. 3d 737 (N.D. Ill. 2016).

Plaintiffs appealed, and the Seventh Circuit began its analysis by noting that the district court worked, as all courts must, “with the record that we have.” As such, the Court said Plaintiffs had the burden of proof on the issues and they “did not meet that burden.” While agreeing that the time constraints are onerous, there is no support that the “City must serve as an involuntary bailee of property for lengthy periods of time, incurring all of the costs and responsibilities that such a status would implicate,” the Court decided.

It found no Takings Clause violation because the property was not being taken for punitive reasons. Rather, the policy is “related to safety at the jail,” the Court continued, and “the 30-day limit reflected the practical constraints on storage capacity.”

“While we can understand [Plaintiffs’] frustration,” the Court concluded, “we find no error in the district court’s decision that they have failed to state any claim on which relief can be granted.” Thus the lower court’s judgment was affirmed. Plaintiffs were represented in the appeal by Chicago attorneys Kenneth Flaxman and Joel Flaxman. See: Conyers v. City of Chi., 10 F.4th 704 (7th Cir. 2021).

A petition for rehearing before the full Seventh Circuit en banc was denied on September 16, 2021. See: Conyers v. City of Chi., 2021 U.S. App. LEXIS 27970 (7th Cir). Plaintiffs then made their final, futile appeal to the Supreme Court. 

Additional source: Chicago Appleseed Center for Fair Courts

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