IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

RONALD PORTIS, MADRIC LANCE, and )

EMMETT LYNCH, individually and on behalf )

of a class, )

)

Plaintiffs, ) No. 02 C 3139

)

v. ) The Honorable Robert W. Gettleman

)

CITY OF CHICAGO, ) Magistrate Judge Nan R. Nolan

)

Defendant. )

PLAINTIFFS' OPPOSITION TO CITY OF CHICAGO'S

MOTION TO CERTIFY INTERLOCUTORY APPEAL PURSUANT

TO 28 U.S.C. §1292(b) AND FOR STAY PENDING REVIEW

In the City of Chicago's ("the city's") request that this Court certify for immediate appeal its

September 9, 2008 order granting plaintiffs' renewed motion for summary judgment, the "controlling

question of law" it presents as "underpinning the decision and the case" badly misrepresents that

question as "[w]hether the Fourth Amendment mandates the release of a person lawfully arrested

(without a warrant) for a municipal offense carrying a fine-only punishment, within two hours of getting a

booking number at the police station." City of Chicago's motion to certify interlocutory appeal pursuant

to 28 U.S.C. §1292(b) and for stay pending review ("city br."), at 1. Its purpose is transparent: to

convert this Court's order that was based on a searching and exhaustive fact-intensive inquiry as to the

policies and practices of the Chicago Police Department ("CPD") with respect to processing persons

arrested for non-jailable ordinance violations, and its conclusion that was based on the results of that

inquiry that detentions of two hours or more after the arrestees were eligible for release were

presumptively unreasonable, into a per se rule never advanced by plaintiffs or intended by this Court. 

Only then can the city even attempt to advance a question certifiable under §1292(b).

What actually occurred on summary judgment is that, after slogging through the record, this

Court made two findings, based on the undisputed material facts: first, at the time the Chicago Police

Department issued class members a booking ("CB") number, it had completed all of the administrative 

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 The Court defined the certified class as: 1

All persons who, from May 1, 2000, through September 3, 2004, were arrested on

ordinance violations which carry no jail time in the City of Chicago and who were

detained for more than two hours after all administrative steps incident to the arrest,

except non-discretionary ministerial acts, were completed. The class is further limited to

those persons who (1) were not fingerprinted by defendants after being brought into

custody; and (2) were eligible for release on personal recognizance bond pursuant to Rule

553(d) of the Illinois Supreme Court.

9/09/08 SJ order, at 1.

2

steps (completed the arrest report and quasi-criminal complaint, and had satisfactorily identified and

charged the arrestee) necessary to determine that they were eligible for release on an I-bond; and

second, "there was nothing (or next to nothing) left to do but release them." Memorandum opinion and

order on plaintiffs' renewed motion for summary judgment ("9/09/08 SJ order") (dkt. 523), at 15, 18-

19. The result was not the establishment of a per se rule, as the city insists. See city br., at 5, 6, 8. 

The application of those findings to well-settled Fourth Amendment principles supported only one

conclusion: the city violated the Fourth Amendment rights of class members -- persons arrested for

non-jailable ordinance violations -- by detaining them in excess of two hours after the city completed 1

all of the administrative steps necessary to determine that they were eligible for release on an I-bond

and "there was nothing (or next to nothing) left to do but release them." 9/09/08 SJ order, at 19.

While the city continues to strenuously disagree with this Court's decision, it fails to establish the

prerequisites to an interlocutory appeal set forth in 28 U.S.C. §1292(b).

Certification under §1292(b) is limited to "exceptional cases." Caterpillar Inc. v. Lewis, 519

U.S. 61, 74 (1996) (internal quotations and citations omitted). Section 1292(b) "is not intended as a

vehicle to provide early review of difficult rulings in hard cases" nor is intended to provide "early

resolution of disputes" regarding the trial court's application of law to the facts. Abortion Rights

Mobilization, Inc. v. Regan, 552 F.Supp. 364, 366 (S.D.N.Y. 1982) (citations omitted); see also

Asher v. Baxter Intern. Inc., 505 F.3d 736, 741 (7th Cir. 2007) (Rule 23(f), "like §1292(b), must be

used sparingly...") (emphasis added). Accordingly, the city is entitled to interlocutory appeal only if it

establishes that the order appealed from meets all of the following criteria: "there must be a question of

law, it must be controlling, it must be contestable, and its resolution must promise to speed up the

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3

litigation." Ahrenholz v. Bd. of Trustees of the Univ. of Ill., 219 F.3d 674, 675-76 (7th Cir. 2000). 

And the question of law to be addressed on appeal must be a "pure" question of law rather than

"merely...an issue that might be free from a factual contest." Id., at 677-78.

As plaintiffs show below, regardless of how the issue is framed, the city's motion does not meet

the prerequisites of §1292(b) and it should be denied.

LEGAL CONTEXT

The Fourth Amendment principles relevant to this case are straightforward and well-settled. 

First, an arrest pursuant to probable cause justifies "a brief period of detention to take the

administrative steps incident to arrest." Gerstein v. Pugh, 420 U.S. 103, 113-114 (1975) (emphasis

added). Second, detention must be justified, Moore v. Marketplace Rest., Inc., 754 F.2d 1336,

1350 (7th Cir. 1985); thus, "[w]hen the `administrative steps' have been completed" and no probablecause hearing is contemplated (as in the case of the class members), "the police...must let [the

suspect] go." Gramenos v. Jewel Cos., Inc., 797 F.2d 432, 437 (7th Cir. 1986).

SUMMARY JUDGMENT ORDER

In light of these well-established legal principles, the Court decided three questions on summary

judgment. First, the factually-based question of which administrative steps had to be completed before

plaintiffs and the members of the class were eligible for release on an I-bond pursuant to Illinois

Supreme Court Rule 553(d) and the CPD's general orders. 9/09/08 SJ order, at 5-9. Second,

whether the administrative steps the city takes after probable cause has been established and a detainee

has been determined eligible for release are "incident to arrest." Id., at 18. And third, whether, based

on the circumstances of this case, it was unreasonable for the city to detain members of the class for

two or more hours once these detainees had been determined eligible for release to perform two simple

steps that take minutes to complete. Id., at 19.

The Court acknowledged, at the outset of its summary judgment order, that the underlying facts

regarding when a detainee becomes eligible for release were indispensable to answering these

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questions. Id., at 3 (stating that it could not resolve plaintiffs' claims "until it had a firm grasp on when,

in the sequence of administrative steps, plaintiffs' eligibility for release had been conclusively

established"). Accordingly, the Court undertook an exhaustive inquiry into the massive and

complicated factual record that has developed since the 2002 inception of this case and over the course

of two motions for summary judgment. During its searching review of the record, the Court weeded

out disputed facts not material to its analysis, and determined, in detail, what steps the city takes upon

arresting a class member, the precise order in which it takes them, and the point at which an individual

becomes eligible for release. The following list summarizes the Court's factual determinations regarding

the steps the city takes upon arresting a class member:

(1) class member is arrested, searched, transported to police station;

(2) class member is placed in a holding area;

(3) arresting officer completes arrest report;

(4) arresting officer completes quasi-criminal complaint;

(5) arresting officer enters class member's identifying information into "hot desk"

system for initial name/warrant check and results are obtained [may take place

at different points, but always takes place before step 6];

(6) desk sergeant reviews arrest report, quasi-criminal complaint, and any other

reports and charges class member;

(7) arresting officer takes paperwork to watch commander, who ensures that

individual has been satisfactorily identified and makes preliminary probablecause determination;

(8) class member is taken from holding area to lockup, where lockup keeper

reviews class member's paperwork, issues a computer-generated CB

number, and prepares class member for custody (in preparation for custody,

class member is searched, permitted to make phone calls, has belongings

inventoried, and fills out medical screening form);

(9) [at this point, individuals whose identity and/or warrant status were deemed

inconclusive by the watch commander are fingerprinted; however, the certified

class specifically excludes individuals fingerprinted after they were

brought into custody];

(10) watch commander again reviews paperwork and signs off on final charges;

(11) desk officer prepares I-bond for class member's signature, and once class

member signs I-bond, belongings are returned and individual is released.

Id., at 5-8.

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 The other step listed in step 10, preparing a class member for lockup, is unnecessary since, as the Court 2

determined, the class member is already eligible for release on I-bond at that point.

5

The Court concluded based solely on these factual determinations (specifically, steps 1-9) that

"class members had been determined eligible for release on an I-bond no later than by the time

they received a CB number" and referred to the issuance of a CB number as "a meaningful indicator

of when class members' eligibility for release was established." Id., at 15, n.11 (emphasis added).

The Court also found, based on the factual record, that only two ministerial and nondiscretionary steps remained after the issuance of a CB number: the initializing of the "final charge" box

on the arrest report (step 10), and the preparation and signing of the I-bond form (step 11) (id., at 6,

8), which plaintiffs established is completed in a matter of minutes. Indeed, the watch commander's 2

second review of class member's paperwork and initializing the "final charge" box is unnecessary (and

redundant) because the class only includes individuals whose initial name/warrant check was conclusive

and, therefore, no new information is obtained between the watch commander's first and second review

and the charge cannot change. See id., at 9. Thus, as the Court put it, once eligibility for release is

determined, "there [is] nothing (or next to nothing) left to do but to release them." Id. In addition,

consistent with the "rationale articulated by both the Supreme Court and the Seventh Circuit," the Court

held, as a "matter of first impression," that those steps cannot be characterized as "incident to arrest,"

but are more accurately characterized as "incident to release." Id., at 18-19.

Once the Court determined that class members were eligible for release on I-bond at the time

the CB number issued, and that there was nothing (or next to nothing) left to be done, it found that

detention in excess of two hours to complete the two ministerial, non-discretionary acts incident to

release is unreasonable. Id., at 19.

Accordingly, the Court held that the city had violated the Fourteenth Amendment. Id., at 17-

19.

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ARGUMENT

1. The issue proposed by the city cannot be decided without a thorough

 review of the record and is, therefore, unsuited for interlocutory review.

The issue as framed by the city, i.e., "[w]hether the Fourth Amendment mandates the release of

a person lawfully arrested (without a warrant) for a municipal offense carrying a fine-only punishment,

within two hours of getting a booking number at the police station" (city br., at 1, 5), is totally unsuited

for interlocutory appeal because it cannot be decided without intense study of the factual record in two

fundamental respects. See Ahrenholz, 219 F.3d at 677 ("[p]ure" questions of law can be decided

"quickly and cleanly without having to study the record").

Since a booking number can be issued at different times by different jurisdictions throughout the

country, the first factual inquiry the Court of Appeals would need to undertake is: what is the

significance of the issuance of a CB number by the CPD? The two-hour standard is similarly relevant

only in the context of the steps taken after a person arrested for a non-jailable ordinance gets a CB

number. Thus, the second factual inquiry the Court of Appeals would have to undertake is: what steps

does the CPD take after a person arrested for a non-jailable ordinance gets a CB number and how

long do they take?

These factual inquiries are necessary precisely because the Court did not intend to, and did not,

create a per se rule that might be capable of review as a purely legal question, as the city insists. See

city br., at 6 (arguing that the Court held that "there is a separate constitutional requirement applicable

only to the period between the issuance of a booking number and release -- that the length of that

portion of detention cannot, as a matter of law, exceed two hours without violating the Fourth

Amendments' `reasonableness' standard"). Rather, the Court's holding that the CPD's practice of

detaining class members in excess of two hours was unreasonable addressed only the CPD's

procedures and only with respect to the certified class. As the Court held, while on this record, "some

time less than two hours may be justified following the issuance of the CB number," two hours is

excessive. 9/09/08 SJ order, at 19.

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7

Since the issue as framed by the city is obviously fact intensive (in addition to inaccurately

characterizing this Court's summary judgment order as creating a per se rule), it fails to meet

§1292(b)'s first two requirements -- that an interlocutory appeal must involve a "pure" issue of law and

that the pure legal question must be controlling. Moreover, resolution of an issue that is not controlling

will not speed up the litigation. The city's issue is therefore inappropriate for interlocutory appeal. 

Below, we address why the issue that this Court actually decided also is not appropriate for

interlocutory appeal.

2. The issue decided by this Court on summary

 judgment does not meet §1292(b)'s prerequisites.

Properly stated, the only issue presented by this Court's summary judgment order is: whether

the city violated the Fourth Amendment rights of class members arrested for non-jailable ordinance

violations by detaining them in excess of two hours after the city completed all of the administrative

steps necessary to determine that they were eligible for release on an I-bond and "there was nothing (or

next to nothing) left to do but release them." This issue is not appropriate for interlocutory appeal as it

is not a pure question of law that is "controlling" and "contestable," and its resolution will not "promise to

speed up the litigation." Id., at 675-76.

A. The issue for appeal is not a "pure" question of law and

 would require the Court of Appeals to study the factual record.

As stated above, the order appealed from must involve a "`pure' question of law rather than

merely...an issue that might be free from a factual contest." Ahrenholz, 219 F.3d at 677-78; see, e.g.,

Cima v. Wellpoint Health Networks, 2008 WL 4449531, *2 (N.D.Ill. Sept. 29, 2008) (noting that

certified issue, whether Illinois HIPPAA creates a private right of action, would not require a trial

record for decision); City of Joliet v. Mid-City Nat'l Bank, 2008 WL 4889038, *2 (N.D.Ill. June 13,

2008) (stating that question of whether U.S. Constitution or doctrine of intergovernmental immunity

preempts and/or prohibits exercise of "eminent domain over privately owned property in which the

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8

federal government claims an interest" and is subject to certain regulatory acts could be determined

"without a trial record").

The issue of whether the city's practice of detaining class members in excess of two hours after

they are determined eligible for release on I-bond is unreasonable cannot be decided "quickly and

cleanly without having to study the record." See id. The best indication of this is this Court's summary

judgment order. Acknowledging that it was necessary for its decision, the Court devoted pages upon

pages in its summary judgment order to examining the record in order to gain a "firm grasp" of the city's

arrest processing procedures including, for the purpose of determining whether, once a detainee was

eligible for release on an I-bond, the remaining steps (whether deemed incident to arrest or to release)

performed by the city justified detentions in excess of two hours. In other words, the Court required an

in-depth understanding of the steps that the city takes after a class member is eligible for release, what

they involve, and the time that it takes to complete them. Specifically, the Court found, based on the

record, that only two ministerial and non-discretionary steps remained after the issuance of a CB

number: the initializing of the final charge box on the arrest report (step 10), and the preparation and

signing of the I-bond form (step 11). See id., at 9. The Court also considered the watch commander's

second review of class member's paperwork and initializing the final charge box and concluded that it

was unnecessary (and redundant) because the class only includes individuals whose initial name/warrant

check was conclusive therefore, no new information is obtained between the watch commander's first

and second review and the charge cannot change. See id., at 8-9, 13 (crediting plaintiffs account of the

city's processing procedures in their LR 56.1 statement). In the end, this Court concluded, based on

these facts, that detention of two or more hours to perform these acts was unreasonable. Id., at 19. 

The Court of Appeals would similarly need to comb through the factual record and gain the same

understanding to address the reasonableness of detentions that exceed two hours because this Court's

ruling was not a per se rule but one that was specific to the facts of this case -- namely, the CPD's

procedures for arresting, charging, and processing detainees that fall within the certified class.

The two cases the city cites to demonstrate that courts have occasionally certified Fourth

Amendment issues for interlocutory appeal (city br., at 4-5) are distinguishable and misinterpret

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9

Ahrenholz. In Calvin v. Sheriff of Will County, 2006 WL 1005141 (N.D.Ill. Apr. 14, 2006),

nothing in the court's order suggests that the Court of Appeals would have to hunt through the factual

record as it would be required to do in this case. Id., at *3. Moreover, to the extent Calvin suggested

that interlocutory appeal was appropriate because the court would not be required to review the factual

record except for "limited uncontested facts," it does not comply with Ahrenholz. Ahrenholz is explicit

that an issue is not a "pure" question of law merely because it "might be free from a factual contest."

219 F.3d at 677-78; see also McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1258 (11th Cir.

2004) (citing Ahrenholz for the rule that "pure" questions of law do not require the application of settled

law to fact).

In Estate of Escobedo v. City of Fort Wayne, 2008 WL 4411485 (N.D.Ind. Sept. 25,

2008), the court did not strictly adhere to Ahrenholz when, in concluding that the case involved a

"pure" or "abstract" legal question, it stated that "this appeal is close enough to being an `abstract legal

question.'" Id., at *2 (emphasis added). Moreover, the Estate of Escobedo court noted that the

appeal would not require "hunting through the record," and the court emphasized the efficiency of

certifying appeal at that juncture "because a number of claims in [the] case already [were] on appeal."

Id., at *2-3. The same cannot be said of the issue in this case.

B. Because the two-hour standard is not a per se

 rule, there is no controlling purely legal issue.

Because the issue for appeal is not a "pure" question of law, it also necessarily is not a

"controlling question of law" within the meaning of §1292(b). 28 U.S.C. §1292(b) (stating that order

appealed from must involve "a controlling question of law"); Ahrenholz, 219 F.2d at 675. This point is,

again, underscored by the fact that the Court's ruling on summary judgment required the Court to apply

the particular facts of this case to the law, as described above. That this case does not present a

question of law for appeal within the meaning of §1292(b) -- a "pure" question of law, Ahrenholz, 219

F.3d at 676-77 -- distinguishes it from cases where courts have examined whether a question is

"controlling." In those cases, of course, any discussion of whether a question was "controlling" was

preceded by an explicit determination that the case presented the requisite question of law. See

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10

Sokaogon Gaming Enterp. Corp. v. Tushie-Montgomery Assocs., Inc., 86 F.3d 656, 658 (7th Cir.

1996); Johnson v. Burken, 930 F.2d 1202, 1205 (7th Cir. 1991).

The city's solution to avoid the inevitable conclusion that this case does not present a

"controlling question of law" was, of course, to ignore that the issue this case presents requires the

application of fact to law, and to frame the issue so it sounds as if the Court created a decisive per se

rule; only by this maneuvering can the city argue that the Court decided a "controlling" legal issue, the

appeal of which is "quite likely to affect the further course of litigation." See Sokaogon Gaming

Enterp. Corp., 86 F.3d at 659. Because the Court's ruling did not involve a "pure" question of law

and hinged on factual determinations, however, this Court cannot (and need not) predict whether an

appeal is "quite likely to affect the further course of the litigation." See id. (emphasis added).

C. The issue is not contestable.

A question of law is "contestable" if: (1) there are "substantial conflicting decisions regarding

the claimed controlling issue of law"; or (2) "the question is not settled by controlling authority and there

is a `substantial likelihood' that the district court ruling will be reversed on appeal." Amoroso v.

Crescent Private Capital, L.P., 2003 WL 22839807, *2 (N.D.Ill. Nov. 26, 2003) (quoting Smith v.

City of Chicago, 2003 WL 1989612, *1 (N.D.Ill. Apr. 28, 2003)). See also In re Brand Name

Prescription Drugs Antitrust Litigation, 878 F.Supp. 1078, 1081 (N.D.Ill. 1995). Since the issue

this case presents -- whether the city violated the Fourth Amendment rights of class members arrested

for non-jailable ordinance violations by detaining them in excess of two hours after the city completed

all of the administrative steps necessary to determine that they were eligible for release on an I-bond

and "there was nothing (or next to nothing) left to do but release them" -- meets neither test, it is not

"contestable." Ahrenholz, 219 F.3d at 675-76.

The city seeks to avoid this conclusion by advancing two bald assertions: first, that as its

"central legal proposition," this Court established "for the first time, the Constitutional limit of two hours

`to the time [law enforcement] officials may take to complete the administrative steps incident to

release' for such persons [who are not intended to be taken to a probable-cause hearing] after issuance

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 The city's statement that if the Court is presented with novel issue, the Court "need not find that it will 3

or even ought to be reversed" (city br., at 7) is incorrect under In re Brand Name Prescription Drugs

(continued...)

11

of a CB number." City br., at 8. And second, because this "Court has...acknowledge[ed] that the legal

issue here as one of "first impression," this central legal issue is by definition "contestable." Id., at 6.

There are two obvious problems with the city's position. First, as we have pointed out above,

this Court's holding is not based on a per se rule that the Constitution imposes a two-hour limit on the

time law enforcement officials may take to complete the administrative steps incident to releasing

persons eligible for release on an I-bond after issuance of a CB number. Instead, the Court's order is

premised on its finding based on the factual record that detaining class members for two hours or more

after they were determined to be eligible for release and there was nothing (or virtually nothing) more to

be done was unreasonable. Because the Court did not establish a per se rule, the city's citation to

Lewis v. O'Grady, 853 F.2d 1366 (7th Cir. 1988), for the proposition that per se rules regarding the

length of detention are not appropriate, is not relevant.

Second, the "matter of first impression" pertains to the nomenclature for the administrative steps

the city takes after a detainee has been determined eligible for release. Consistent with the "rationale

articulated by both the Supreme Court and the Seventh Circuit," the Court held, as a matter of first

impression, that those steps cannot be characterized as "incident to arrest," but are more accurately

characterized as "incident to release." 9/09/08 SJ order, at 18-19. Since the record established that

"once the watch commander had determined probable cause and established that the class members

were eligible for release, there was nothing (or next to nothing) left to do but to release them," id., the

Court's decision to characterize the administrative steps taken after a detainee has been determined

eligible for release as "incident to release" was logical and not contestable, and this nomenclature was

not, in any case, determinative of the Court's decision as to the reasonableness of a two-hour period of

detention to complete the two ministerial, non-discretionary steps.

Properly framed, the Court's overall holding is also not "contestable," as it is the only

supportable result based on the facts and the law and there are no plausible arguments or persuasive

authority to the contrary. The Court's holding is consistent with Supreme Court and Seventh Circuit

3

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(...continued)

Antitrust Litigation, 878 F.Supp. at 1081; Amoroso, 2003 WL 22839807, *2; and Smith, 2003 WL

1989612, *1, among others. Moreover, in the cases the city cites, the court stated it was "loath" to admit

that it may be reversed on appeal, but both cases also state that an issue is contestable if it is "not settled

by controlling authority...and a substantial likelihood exists that the district court's ruling will be reversed

on appeal." See City of Joliet, 2008 WL 4889038, at *2 (internal quotations and citation omitted)

(emphasis added); In re Ocwen Fed. Bank FSB, 2006 WL 1371458, *3 (N.D.Ill. May 16, 2006).

12

jurisprudence and reflects common sense: if an arrest justifies a "brief period of detention to take the

administrative steps incident to arrest," Gerstein, 420 U.S. at 113-14, and "[w]hen the administrative

steps have been completed" and no probable-cause hearing is contemplated, "the police...must let [the

suspect] go, Gramenos, 797 F.2d at 427, and if at the time it is determined that the arrestee eligible to

be let go on an I-bond there is nothing or next to nothing (i.e., the initializing of the "final charge" box on

the arrest report and the preparation and signing of the I-bond form, which takes only a matter of

minutes) to do but let them go, then two hours of detention in order to complete these ministerial steps

is excessive. 9/09/08 SJ order, at 19.

To the extent the courts have addressed what length of detention incident to arrest may be

justified under the Fourth Amendment in contexts not involving the CPD's process with respect to

individuals arrested on non-jailable ordinance violations, the Court's holding comports with those

decisions. In Gramenos, the court cautioned that "if police choose to perform time consuming tasks

after an arrest, perhaps they must do so on their own time rather than the suspect's." 797 F.2d at 437. 

And, the Gramenos court was clear that once "administrative steps" are complete and no probablecause hearing is contemplated (as in the case of the class members), "the police...must let [the

suspect] go." Id. Moreover, the Seventh Circuit has speculated that it takes only "one-half hour at

most for [a] minor misdemeanor charge to be processed," Moore, 754 F.2d at 1351 n.22, and noted

that "the American Law Institute thinks that two hours are enough to complete the administrative steps

incident to arrest," Gramenos, 797 F.2d at 437.

The city's continued reliance on County of Riverside v. McLaughlin, 500 U.S. 44 (1991),

which established a presumptively reasonable 48-hour time period between an arrest and a probablecause hearing, gets the city nowhere. Id., at 56. The Court has rejected the city's reliance on County

of Riverside, 9/09/08 SJ order at 17, and for good reason. The Seventh Circuit has clarified that

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 The cases the city cites in addition to Calvin, which this brief distinguished supra in Section 2.A., are 4

distinguishable on other grounds. See Stong v. Bucyrus-Erie Co., 476 F.Supp. 224, 225 (N.D.Wis. 1979)

(plaintiffs admitted that order decided a controlling question of law, and a split of authority existed on the

relevant question of law); Hodgkins v. Goldsmith, 2000 WL 892964, *27 (S.D.Ind. July 3, 2000) (noting

that there was a substantial ground for difference of opinion on controlling question of law certified for

appeal and noting special interest in quick resolution of constitutionality of curfew law).

13

County of Riverside does not control cases, such as this, where no probable-cause hearing is

contemplated. Chortek v. City of Milwaukee, 356 F.3d at 740, 746 (7th Cir. 2004). The other

authorities the city cites, city br. at 7-8, have no relevance to this Court's decision and should similarly

be disregarded. See United States v. Arvizu, 534 U.S. 266, 277-78 (2002) (holding that border

patrol agent had reasonable suspicion to stop plaintiff while he was traveling in his vehicle based on the

"totality of the circumstances"); United States v. Banks, 540 U.S. 31, 42 (2003) (holding that officers

executing a warrant did not violate the Fourth Amendment or 18 U.S.C. §3109 by waiting 15-20

seconds after they knocked and announced before forcible entry based on the "totality of the

circumstances").

D. An interlocutory appeal would not promise to speed up the litigation.

A review of the Court's summary judgment order on interlocutory appeal would not "promise to

speed up the litigation." Ahrenholz, 219 F.3d at 675. After all, even if the Seventh Circuit reached the

insupportable conclusion that the city's practice of detaining class members in excess of two hours after

the city completed all of the administrative steps necessary to determine that they were eligible for

release on an I-bond and "there was nothing (or next to nothing) left to do but release them," such a

decision would leave open the question of at what point in time, in excess of two hours, detention

becomes unreasonable, and a remand to decide that question would be necessary.

Moreover, the Court should avoid granting an interlocutory appeal at this late juncture, when all

that is left to be determined is damages. The cases cited by the city, city br. at 9, fail to acknowledge

4

that to certify an interlocutory appeal on the rationale that potentially avoiding a damages phase would

"speed up" the litigation significantly undermines the rule that interlocutory appeals are reserved for

"exceptional cases." See Am. Airlines v. United States, 71 Fed. Cl. 744, 747 (2006) (stating that "if

every case, in which liability has been determined and damages have yet to be quantified, was

Case: 1:02-cv-03139 Document #: 536 Filed: 12/17/08 Page 13 of 15 PageID #:10703
14

considered to meet the standard of `materially advanc[ing] the ultimate determination of this litigation,'

the policy limiting interlocutory appeal to `exceptional cases' would be severely eroded" (quoting

Caterpillar, 519 U.S. at 74)). For this reason alone, the Court should conclude that the city cannot

meet the final §1292(b) factor.

CONCLUSION

For these reasons, plaintiffs respectfully request that the Court deny the city's request for a

certification for interlocutory appeal and stay pending review.

Respectfully submitted,

/s/ Judson H. Miner 

Judson H. Miner

One of the Attorneys for Plaintiffs

Miner, Barnhill & Galland

14 W. Erie St.

Chicago, IL 60610

(312) 751-1170

Mark G. Weinberg

3612 N. Tripp Ave.

Chicago, IL 60641

(773) 283-3913

Michael Kanovitz

Loevy & Loevy

312 N. May St.

Chicago, IL 60607

(312) 243-5902

Thomas G. Morrissey, Ltd.

10249 S. Western Ave.

Chicago, IL 60643

(773) 233-7900

Robert H. Farley, Jr., Ltd.

1155 S. Washington St.

Naperville, IL 60540

(630) 369-0103

Case: 1:02-cv-03139 Document #: 536 Filed: 12/17/08 Page 14 of 15 PageID #:10704
CERTIFICATE OF SERVICE

Lisa Mecca Davis certifies that she caused the attached Opposition to be served on all counsel

of record, by this Court's electronic-filing system, this 17th day of December, 2008.

/s/ Lisa Mecca Davis 

Lisa Mecca Davis

Case: 1:02-cv-03139 Document #: 536 Filed: 12/17/08 Page 15 of 15 PageID #:10705