was neither an investigative purpose nor a community caretaking function to be served by the
seizure, although the seizure was conceded to be authorized by an ordinance of the city.
Harrington has never argued that the impoundment was unlawful under the ordinance, but
examination of the ordinance on which the City relies for its action raises the question whether
this is true, and if not, whether it makes a significant difference in the court’s analysis. Section
15.45.2 provides that a motor vehicle knowingly used in the commission of certain sex offenses
(subsection (b)(5)(1)),” and certain drug offenses (subsection (b)(5)(2)) “shall be subject to
scizure and impoundment under this section.” By contrast, subsections (b)(5)(3) - (b)(5)(6),
prohibit the operation of a motor vehicle in violation of certain identified sections of state law
but do not specifically authorize seizure and impoundment of a vehicle. The Illinois Criminal
Code, 720 ILCS 5/36-1, however, does authorize seizure and impoundment for violations of
subsections (b)(5)(3) and (b)(5)(4), and it is fair to assume the City intended to incorporate the
seizure and impoundment provisions of state law within its ordinance. With regard to the
separate offenses of operating a vehicle not covered by a liability insurance policy and operating
a vehicle without a valid license or permit, neither the ordinance nor any provision of the Illinios
Criminal Code or Illinois Vehicle Code authorizes seizure and impoundment unless the operator
commits both offenses at the same time. See 625 ILCS 5/6-101(d) (“In addition to other
penalties imposed under this Section, any person in violation of this Section who is also in
violation of Section 7-601 of this Code relating to mandatory insurance requirements shall have
his or her motor vehicle immediately impounded by the arresting law enforcement officer. The
motor vehicle may be released to any licensed driver upon a showing of proof of insurance for

the motor vehicle that was impounded and the notarized written consent for the release by the



what process Harrington was due both before and and after her vehicle was impounded. To the
extent she contends that the court should apply the Barker test, Harrington should distinguish
David, 538 U.S. 715, 123 S. Ct. 1895, and discuss Stypmann v. City & Cty. of San Francisco,
557 F.2d 1338, 1342 (9" Cir. 1977), and Coleman v. Watt, 40 F.3d 255 (8" Cir. 1994), which
apply the Mathews test to analyze due process claims similar to those raised in this case; (4)
discuss whether she has also alleged a claim for inadequate notice of a hearing to challenge the
validity of the impoundment and if so, whether that claim entitles her to relief; and (5) discuss
whether the fact that the ordinance requires an owner of a vehicle to post a bond and pay the
towing and storage fees before obtaining release of their vchicle pending the post-deprivation
hearing distinguishes this case from cases such as Breath v. Cronvich, 729 F.2d 1006 (Sth Cir.
1984) and Coleman v. Watt, 40 F.3d 255 (8" Cir, 1994). If Harrington files such a
memorandum, the City will be given an opportunity to respond. Any claim not appropriately
explained in the memorandum will be deemed waived.

Finally, the parties are instructed to discuss belore the next status hearing the possibility

of settlement of this case.



In light of the foregoing, the City’s tender in this case was insufficient to moot
Harrington’s claims because it did not include court costs. As a consequence, even if this court
erred when it found the City’s tender insufficient because it did not include attorncy’s fees - an
issue that, in light of Gates, again appears in doubt - its conclusion in the Final Judgment Order
that Harrington’s case remained live following the City’s tender no longer appears incorrect and
is unlikely to be overturned on appeal. As such, the case is not moot.

That said, the issue remains whether the case was correctly decided on the merits in light
of both parties’ urging additional authorities, The City contends that, accepting the pleaded facts
as true, it is entitled to judgment as a matter of law. As discovery has long since closed and
Harrington has not asserted any genuine issue of material fact, the casc appears to be ripe for
summary disposition. But because the parties have not yet adequately addressed a number of
issues, the following discussion endeavors to frame the issues so the path to disposition may be
quickly travelled.

The first issue is whether the Fourth Amendment’s prohibition against unreasonable
seizures was violated when an officer, having probable cause to issue a citation to Harrington’s

son for operating a vehicle without valid license, impounded Harrington’s vehicle where there

district court in Gates merely found that plaintiff?s state law restitution-based claims were mooted by the
City’s return of all of the money seized from the plaintiffs at the time of their arrest. See Gates v.
Towery, 456 F. Supp. 2d 953, 960 (N.D. Ill. 2006), That finding was predicated on the fact that ““[ujnder
Illinois law, restitution is accomplished by ‘return or restoration of some specific thing to its rightful
owner or status.” Jd, At issue in this case, in contrast, is whether Harrington’s entire suit, which
includes claims based not on restitution but on alleged violations of her constitutional rights, are mooted
by the City’s tender. On that question, the district court’s opinion on remand in Gates, if anything,
supports this court’s interpretation of the Seventh Circuit’s Gates opinion, as the district court in that
case allowed the the plaintiffs’ claims for damages for violations of due process and state law claims for
conversion and replevin to proceed. Jd. at 966.



vehicle owner.”) (Emphasis added), The source of the authority to impound for operating a
vehicle without a valid license, vel non, has not been revealed to this court. If the City has no
statutory authority for its conduct, then the question must be addressed whether the case is
distinguishable on any principled basis from United States v. Duguay, 93 F.3d 346 (7 Cir. 1996)
(a city violated the Fourth Amendment when it impounded a vehicle upon arresting the
occupants, where the purpose of seizing the vehicle was not investigative, the impoundment was
not authorized by Illinois law, the city had no standardized policy indicating the limited
circumstances under which a car may be impounded, and the defendant could have provided for
prompt removal from the strect.). In the event the City can show statutory authority for its
conduct, the City must still explain why this court should not follow the Ninth Circuit’s decision
in Miranda v. City of Cornelius, 429 F.3d 858 (9" Cir. 2006), which held that a local ordinance
that allowed an officer to tow a vehicle upon reasonable belief that the driver is operating it

without a valid operator’s license violated Fourth Amendment?

>The City cites Rush v. Superintendent of Police, 1994 WL 114847 (N.D. Ill. Apr. 4, 1994), and
Towers v. City of Chicago, 173 F.3d 619 (7" Cir. 1999), but neither lends substantial guidance. In Rush,
the court principally rejected a due process (pre-deprivation hearing) challenge to an ordinance
authorizing traffic officers to impound taxicabs being operated in violation of an ordinance imposing
strict regulations on the operation of taxicabs not licensed by the City of Chicago. Ina brief paragraph,
the court also rejected a Fourth Amendment argument that the seizure of the taxicab was unreasonable.
The court, noting that the Harrington had apparently conceded the point, briefly analogized from the rule
that an officer may effect a warrantless arrest of a person if he has probable cause to believe the suspect
committed or was committing a crime, and concluded that “a warrantless governmental seizure of
property complies with the Fourth Amendment's requirements of reasonableness if the scizing officer has
probable cause to believe that the property was being used in connection with illegal activity.” 1994 WL
114847, at * 4 (citing Carroll v. United States, 267 U.S. 132, 155-56, 45 S. Ct. 280, 286 (1925)). To be
sure, Rush is worth considering, but its persuasive value is limited because the facts surrounding the
Fourth Amendment argument were not developed, it does not discuss Duguay, and it relies on Carroll,
which treated seizure of a vehicle that contained contraband and is readily distinguishable from the facts
presented here. Moreover, the challenge to the ordinance in Rush did not include the fact present here
that an owner, apart from the operator of the vehicle, was able immediately to take the car off the street.



CONCLUSION
For the foregoing reasons, the City’s renewed motion to vacate [# 84] is granted, The
Final Judgment Order entered on December 4, 2006 is hereby vacated. The parties are directed
to appear for status on June 26, 2007 at 9:30 a.m., at which time the parties shal] advise the court

of an agreed plan and schedule for the remainder of this litigation.

Dated: June 12, 2007 nye” ax sale

JOAN HUMPHREY LEFKOW
United States District Judge



UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
LARISSA HARRINGTON, )
)
Plaintiff, )
) No. 04 C 5991

vs. )

} Judge Joan H. Lefkow
OFFICER DAVID HEAVEY, ct al., )
INDIVIDUALLY AND AS A POLICE )
OFFICER FOR THE CITY OF )
WAUKEGAN, )
)
and )
)
THE CITY OF WAUKEGAN, a municipal )
corporation, )
)
Defendants. }

MEMORANDUM OPINION AND ORDER

On November 16, 2006, this court entered summary judgment in favor of plaintiff Larissa
Harrington ("Harrington") against the City of Waukegan ("the City") and Officer David Heavey
("Officer Heavey"), finding § 15-45.2(b)(5)(6) of the Municipal Code of the City of Waukegan
(“the ordinance") to be unconstitutional under the Fourth Amendment. The court then entered a
Final Judgment Order, permanently enjoining the City from enforcing the ordinance. The City
filed a notice of appeal. Thereafter, the City filed a motion before this court to stay the injunction
pending appeal. On January 23, 2007, this court granted that motion, concluding that in light of
newly cited authorities, it had likely wrongly decided that the case was not moot and thus should
not have reached the merits. On the basis of that acknowledgment, the City moved pursuant to

Rule 60(b)(1) and (6), Fed. R. Civ. P., to vacate the Final Judgment Order. The court denied the



The second issue Harrington’s complaint presents is whether the ordinance violates the
due process clause of the Fourteenth Amendment, an issue that was not considered in this court’s
November 16, 2006 Memorandum Opinion and Order but arises in the case’s present posture.
Here again, however, the parties’ presentations on this issue are inadequate.

If Harrington continues to assert her Fourteenth Amendment claim, she must submit a
memorandum in support of her position explaining why she is entitled to judgment as a matter of
law. See 330 West Hubbard Restaurant Corp. v. United States, 203 F.3d 990 (7th Cir. 2000)
(“[I]t is not the obligation of this court to research and construct the legal arguments open to the
parties, especially when they are represented by counsel .... In order to develop a legal argument
effectively, the facts at issue must be bolstered by relevant legal authority....”). At least,
Harrington must (1) distinguish between her as-applied and facial challenges to the seizure
ordinance; (2) identity with respect to cach challenge the property interest at stake (the loss of
one’s moncy versus the loss of the use and enjoyment of one’s vehicle) in light of the Court’s
opinion in City of Los Angeles y. David, 538 U.S. 715, 123 8. Ct. 1895, 155 L. Ed. 2d 946
(2003); and (3) discuss whether the court should apply the Supreme Court’s Barker v. Wingo,
407 U.S. 514, 92 8. Ct. 2181, 33 L. Ed. 2d 101 (1972) speedy trial test or its Mathews v.

Eldridge, 424 U.S. 319, 332, 96 S. Ct. 893, 901, 47 L, Ed. 2d 18 (1976), balancing test to assess

In Towers, the Seventh Circuit affirmed the district court’s dismissal of plaintiffs’ claim that the
impoundment of their cars pursuant to a seizure ordinance that required police officers to tow any vehicle
containing illegal drugs or unregistered firearms was unconstitutional. As in Rush, the plaintiffs
developed neither the facts nor argument supporting a Fourth Amendment challenge, but the court in a
footnote reasoned that because it had rejected plaintiffs’ suggestion that the ordinance was per se
unreasonable (the substantive due process claim), any argument that a seizure based on violation of the
ordinance failed where there was no allegation that the officers lacked probable cause when they seized
the vehicles initially. 173 F.3d at 629 n.7, Towers is within the rule of Duguay that a seizure of a vehicle
is lawful where the officer had probable cause to believe that the vehicle contained contraband.

7



City’s motion on February 1, 2007, ruling that grounds had not been shown under either
subsection of Rule 60 to vacate the Final Judgment Order and the City had offered no
justification for its failure to file a timely motion under Rule 59(e), the proper vehicle to alter or
amend a judgment. On February 5, 2007, the City filed in the court of appeals a motion to
remand pursuant to Rule 57 of the Circuit Rules of the United States Court of Appeals for the
Seventh Circuit. According to the City, in its motion to remand it argued that under the unusual
facts of this case, this court retained jurisdiction pursuant to Rule 60(b), Fed. R. Civ. P., to vacate
the Final Judgment Order. On March 15, 2007, the Seventh Circuit granted the City’s motion
without discussion, thereby remanding the case back to this court, Thereafter, the City renewed
its motion to vacate the Final Judgment Order, which is fully briefed and ready for ruling. For
the reasons stated below, the City’s motion is granted.'
DISCUSSION

As indicated in its January 23, 2007 Memorandum Opinion and Order granting a stay,
this court opined that it had likely erred when it concluded that Hartington’s case against the City
was not moot because of her potential entitlement to attorney’s fees under 42 U.S.C. § 1988 and
her claim for equitable relief. Harrington does not specifically challenge that conclusion but
contends, nevertheless, that her case is not moot because the City’s tender of $800 “did not

include filing fees or other costs and the tender was, therefore, insufficient.” Harrington cites

'The City asserts that the issue of this court’s jurisdiction to vacate the Final Judgment Order
under Rule 60(b) was resolved by the Seventh Circuit’s order granting the City’s motion to remand,
Though the Seventh Circuit’s order remanding the case back to this court is devoid of discussion, this
court agrees that the Seventh Circuit’s decision constitutes an implicit acknowledgement that the
circumstances surrounding the City’s invocation of Rule 60(b)(6) are extraordinary and thus a proper
basis for granting relief under that rule, As such, the court finds that it has the authority to vacate the
Final Judgment Order.



Gates v. Towery, 430 F.3d 429 (7" Cir. 2005), in support of her position that a defendant’s tender
of compensation that does not include filing fees and other court costs is incomplete and thus
insufficient to render a plaintiff's claims moot.

In Gates, the Seventh Circuit determined that a putative class action was not mooted by
the defendant city’s tendering to the two named plaintiffs the money that had been seized by the
city police when the plaintiffs were arrested because the city’s tender did not include the
complete relief sought by the plaintiffs, including costs, interest, nominal damages and
compensatory damages. The City concedes that the court in Gates stated that “|a] tender is
insufficient unless it makes the plaintiff whole and thus must include the filing fees and other
court costs under 28 U.S.C. § 1920,” 430 F.3d at 431, but it argues that that language is dictum
since the Court also found the city’s tender insufficient because it did not include compensatory
damages. The City’s definition of dictum is overbroad, however, since it is well-settled that
“where a decision rests on two or more grounds, none can be relegated to the category of obiter
dictum.” Woods v. Interstate Realty Co., 337 U.S. 535, 537, 69 S. Ct. 1235, 1237, 93 L. Ed.
1524 (1949). Thus, since the court’s discussion of court costs in Gates was an independent basis
for its decision, its finding that a tender is insufficient unless it includes court costs is binding on

this court.”

2That Gates is arguably in tension with cases such as Lewis v. Continental Bank Corp., 494 U.S.
472, 480, 110 8. Ct. 1249, 108 L. Ed. 2d 400 (1990), and Steel Co. v. Citizens for a Better Environment,
523 U.S. 83, 107-08, 118 S. Ct. 1003, 140 L. Ed. 2d 210 (1998), which hold that a claim for attorney’s
fees is insufficient to sustain an otherwise moot case or controversy, does not make it any less
authoritative. If Gates was wrongly decided, it is for the Seventh Circuit to say so. Moreover, the
Seventh Circuit cited Lewis and Steel Co. in Gates and thus was well aware of them when it held that a
case is not mooted by a tender that does not satisfy the plaintiff’s demand for court costs.

Finally, contrary to the City’s argument, the district court’s application of Gates on remand does
not suggest that the Seventh Circuit’s language regarding court costs was not a part of its holding. The

3