City’s interrogatories that she sought.* Thus, this court’s decision reaching the merits of this
dispute and enjoining the City’s enforcement of the seizure ordinance is likely to be reversed on
appeal.*

B. The Irreparable Harm To The City If The Stay Is Denied

Under the circumstances of this case, the court’s finding that it likely improperly enjoined
enforcement of the seizure ordinance is per se evidence of irreparable harm to the City if the stay
is denied. See Flower Cab Co. v. Petitte, 685 F.2d 192, 194 (7th Cir. 1982) (“Since a probably
baseless federal injunction interfering with the operation of municipal government is a serious
affront to the theory and practice of federalism, we conclude that the preliminary injunction
granted by the district court pending appeal should be stayed without requiring the city to
demonstrate irreparable injury beyond what is inherent in an injunction that prevents its officials
from carrying out what they conceive to be their duties.”).

Cc The Irreparable Harm To Harrington If The Stay Is Granted

There is no basis to find that a stay will harm Harrington, because she could only be

harmed by a stay of the injunction if her car were again impounded pursuant to the seizure

‘In its decision entering summary judgment in favor of Harrington, the court summarily dismissed
Harrington’s claim of punitive damages against Officer Heavey, finding that there was no evidence in the record that
Officer Heavey did anything other than what he believed he was required to do under the seizure ordinance. See
Merritt v. De Los Santos, 721 F.2d 598, 601 (7" Cir. 1983) (Punitive damages are recoverable in a 42 U.S.C. § 1983
suit against an officer in his individual capacity “when the defendant’s conduct is shown to be motivated by evil
motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.”).
Thus, as with the City, only Harrington’s claim for attorney’s fees and costs against Officer Heavey survived the
City’s offer. Accordingly, though Officer Heavey did not expressly join the City’s request for a stay, the court finds
that it also improperly reached the merits of Harrington’s case against Officer Heavey.

$Having found that the Seventh Circuit is likely to conclude that this court should not have reached the
merits of this case, this court need not review its decision on the merits finding that the seizure ordinance violates the

Fourth Amendment.



moot because of her potential entitlement to attorney’s fees and costs under 42 US.C. § 1988.
The City is also likely to prevail on appeal on its claim that the court improperly
referenced Harrington’s claim for equitable relief as a possible basis for rejecting the City’s
mootness argument. In order to satisfy the jurisdictional prerequisite of standing to bring a claim
for injunctive or declaratory relief, a plaintiff must show a “real likelihood” or an “immediate
threat” that she again will be subject to the same alleged wrongful conduct. Knox v. McGinnis,
998 F.2d 1405, 1413-14 (7" Cir. 1993). When considering the likelihood that the plaintiff will
suffer future harm from the defendants’ alleged practice of wrongful conduct, courts “must
assume that [the plaintiff] will conduct their activities within the law and so avoid ... exposure to
the challenged course of conduct said to be followed by the defendants.” O'Shea, 414 US. at
497. In this case, it is clear that Harrington lacks standing to assert a claim for equitable relief
because she cannot show that it is reasonably likely that her car will again be impounded
pursuant to the seizure ordinance. Since the court must assume that Harrington will neither
operate nor permit others to operate her vehicle without a valid driver’s license, the possibility

that she will again be subject to the seizure ordinance is speculative.’

In light of the foregoing, as the City originally argued, Harrington’s case became moot

upon the City’s payment of all the actual damages Harrington affirmed in her answers to the

3For the same reasons, the “capable of repetition yet evading review” exception to the mootness doctrine
invoked by the parties is inapplicable in this case. That exception requires a showing that there is a reasonable
expectation that the same complaining party would be subjected to the same action again. Murphy v. Hunt, 455 U.S.

478, 482, 102 S. Ct. 1181, 1183 (1982) (per curiam). Since the possibility that Harrington will again be subject to
the seizure ordinance is speculative, the exception does not apply.

4



ordinance. Since the court must assume that Harrington will act lawfully, See O Shea, 414 U.S.
at 497, there is no basis to assume that Harrington will again be subject to the seizure ordinance.
Accordingly, the balance of harms clearly weighs in favor of granting the stay.
D. Whether The Stay Will Serve The Public Interest

Since this court likely mistakenly reached the merits of this case, it would be
inappropriate for this court to consider its decision finding the seizure ordinance unconstitutional
in evaluating whether a stay of its injunction would serve the public interest. With the legality of
the seizure ordinance removed from consideration, only the City’s and its elected officials’
assessment of the seizure ordinance is before the court.’ Time and again, in the original
enactment and later amendment of the seizure ordinance, as well as in support of the present
motion, the City has made clear that it believes the seizure ordinance is an important tool in
reducing traffic offenses and accidents. Those findings, which are not unreasonable on their
face, are entitled to substantial deference from this court. See Sutton Jr. v. City of Milwaukee,
672 F.2d at 646 (“State and municipal traffic officials, who know much more about these matters
than federal judges do, have decided that towing is more effective in dealing with parking
violations of all kinds than just jacking up the fines further would be, and we cannot say that this
judgment is not a reasonable one.”). Accordingly, based on the facts before the court, the stay
would serve the public interest.

In sum, the City has demonstrated that it has a reasonable likelihood of success on the

‘In her opposition to the City’s motion, Harrington argues that the stay would harm the public interest,
because the seizure ordinance was enacted “to fill the city ‘coffers’ to the tune of $2 million ... from a socio-
economic group who can least afford the $800 or so or afford to lose their automobiles.” Since there is no factual
basis in the record supporting these assertions, however, they are entitled to little, if any, consideration in weighing

the public’s interests.



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, et 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 portions of § 15-45.2 of the Municipal Code of the City of
Waukegan (“the seizure ordinance”) to be unconstitutional under the Fourth Amendment. The
court then entered a Final Judgment Order, permanently enjoining the City from enforcing
certain portions of the seizure ordinance. The City has since filed its Notice of Appeal of that

Order, including the injunction, to the Seventh Circuit.’ Before this court is the City’s motion to

‘Harrington asserts in her response to the City’s motion to stay that the City’s appeal was filed prematurely
because “[b]oth Waukegan and the Plaintiff have filed post-trial motions in [this Court].” Neither post-trial motion
filed by the parties in this case extends the time for filing an appeal. See Fed. R. App. P. 4(a)(4). As such, the time
to file an appeal began to run from the date of entry of the court’s final judgment. Even if the parties” post-trial
motions re-set the time to file an appeal, the City’s notice of appeal became effective on December 20, the date the

court disposed of the last remaining post-trial motion Either way, the City’s appeal was not premature.



merits of its appeal, that the balance of harms weighs heavily in its favor, and that the public
interest will be served by granting the requested stay. As a consequence, the court grants the
City’s motion.
ORDER

The City’s motion for stay pending appeal [# 59] is granted. Accordingly, the injunction
entered by the court on December 4, 2006, Docket # 52, enjoining the City of Waukegan and
Officer Heavey from enforcing the Municipal Code of the City of Waukegan § 15-45.2 insofar as
it authorizes them to impound a vehicle operated by an unlicensed driver in situations where
impoundment is unnecessary to protect the vehicle, to avoid a danger to the public, to remove an
obstruction to the free-flow of traffic, or to serve any other community caretaking interest is

hereby stayed pending appeal.

Date: January 23, 2007 Enter: (Pan Cir heffton.

JOAN HUMPHREY LEFKOW
United States District Judge



stay the injunction pending appeal. For the reasons stated below, the City’s motion is granted.
DISCUSSION

Federal Rule of Civil Procedure 62(c) provides a district court discretion to suspend,
grant, modify, or restore injunctions during the pendency of an appeal, upon such terms as it
considers proper. See Fed. R. Civ. P. 62(c). In assessing whether a stay is warranted, district
courts examine whether the party seeking a stay has demonstrated (1) a strong showing that he is
likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay;
(3) whether issuance of the stay will substantially injure the other parties interested in the

proceeding; and (4) where the public interest lies. Hilton v. Braunskill, 481 U.S. 770, 776, 107 |

S. Ct. 2113, 95 L. Ed. 2d 724 (1987); Hinrichs v. Bosma, 440 F.3d 393, 396 (7 Cir. 2006).
A. Likelihood of Success on the Merits

A party seeking a stay of the entry of an injunction pending an appeal need not show that
it has a “probability” of success on appeal in order to demonstrate a likelihood of success on the
merits. The “likelihood of success” standard requires something less than a 50% chance of
success. Thomas v. City of Evanston, 636 F.3d 587, 590 (N.D. Ill. 1986). It is sufficient that a
party demonstrate that it has a substantial case on the merits.” Id.

The court found that the City did not offer to satisfy Harrington’s entire demand because,
among other things, it failed to offer to reimburse Harrington for her attorney’s fees and costs,

which she specifically sought in her complaint. As a consequence, the court found that there

?The City first contends that the court incorrectly regarded its offer as a Rule 68 offer of judgment, instead
of as an offer of restitution, which then led the court to analyze the sufficiency of its offer under a heightened
standard. The court need not decide which characterization of the City’s offer is proper, nor whether it matters,
Because the court now finds that even if the City’s offer is analyzed under the arguably heightened standard
applicable to offers of judgment, it is clear that its offer was sufficient to render this case moot.

2



remained a live case or controversy regarding Harrington’s entitlement to attorney’s fees and
costs, which was sufficient to give the court subject matter jurisdiction over the case. The court
reached that conclusion without giving the parties an opportunity to address whether a claim for
attomey’s fees and costs, standing alone, prevented a case from being dismissed as moot. That
now appears to have been a mistake, as the cases cited by the City in support of its present
motion, Lewis v. Continental Bank Corp., 494 U.S. 472, 480 (1990) (Plaintiff's interest in
prevailing party attorney's fees is insufficient to create an Article III case or controversy where
none exists on the merits of the underlying claim),and Flesch v. Eastern Pennsylvania
Psychiatric Institute, 472 F. Supp. 798, 802 (E.D. Pa. 1979) (“A litigant's desire to obtain a fee
award at the conclusion of a case cannot keep the case in federal court after it has become moot
in all other respects.”), more than strongly suggest that, contrary to the case relied on by the court
in its previous decision, Wilner v. OSI Collection Services, Inc., 201 F.R.D. 321 (S.D.N.Y.
2001), a claim for attomney’s fees and costs is insufficient to create an Article II case or
controversy where none exists on the merits of the underlying claim. The court’s own research
only reinforces that impression. See Liu, M.D. v. Immigration and Naturalization Service, 274
F.3d 533, 536 (D.C. Cir. 2001) (“T]he mere fact that continued adjudication would provide a
remedy for an injury that is only the byproduct of the suit itself does not mean that any injury is
cognizable under Art. II.”) (quoting Diamond v. Charles, 476 U.S. 54, 70-71, 106 S. Ct. 1697,
90 L. Ed. 2d 48 (1986)); 1A C.J.S. Actions § 76 (“Generally, a moot action will not be retained
for determination merely to decide incidental questions such as liability for costs or attorney’s
fees.”) (citing cases). Accordingly, the court finds that the City is likely to prevail on appeal on

its claim that the court erred when it concluded that Harrington’s case against the City was not