In the

United States Court of Appeals

For the Seventh Circuit

No. 09-1498

RONALD PORTIS, MADRIC LANCE, and

EMMETT LYNCH, individually and

on behalf of a class,

Plaintiffs-Appellees,

v.

CITY OF CHICAGO, ILLINOIS,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 02 C 3139—Robert W. Gettleman, Judge.

ARGUED SEPTEMBER 14, 2009—DECIDED JULY 23, 2010

Before EASTERBROOK, Chief Judge, and BAUER and

EVANS, Circuit Judges.

EASTERBROOK, Chief Judge. The City of Chicago occasionally makes custodial arrests of persons who have committed offenses that are punishable by fines but not

imprisonment. From May 2, 2000, through May 31, 2004,
2 No. 09-1498

the City’s police made approximately a million arrests.

Of these, some 36,000 were for fine-only offenses, such

as disorderly conduct, gambling, peddling without a

license, failing to stop a car at a stop sign, or walking a

dog without a leash. See Kirchoff v. Flynn, 786 F.2d 320

(7th Cir. 1986). The Constitution allows police to make

custodial arrests for fine-only offenses, see Atwater v.

Lago Vista, 532 U.S. 318 (2001), and this is more likely

to occur if the suspect cannot or will not provide identification that would allow the police to write a ticket.

Still, even an uncooperative person is entitled to be released after a reasonable time during which the

arresting authority learns who he is, performs a check

for outstanding warrants, and obtains consent to the

terms of bond. See Gerstein v. Pugh, 420 U.S. 103, 113–14

(1975); Gramenos v. Jewel Companies, Inc., 797 F.2d 432,

437 (7th Cir. 1986).

After Chicago’s police know the arrested person’s

identity and conclude that he is not wanted on a more

serious charge, and a supervisor determines that probable cause supports the accusation, a desk sergeant

issues what the parties call a CB (for Central Booking)

number. This establishes the person’s entitlement to

be released on a personal-recognizance bond (which the

parties call an I-bond) under Ill. S. Ct. R. 553(d). The

bond must be prepared and signed; the police must

retrieve and return the arrested person’s belongings

(for pocket knives and many other items are not appropriate in police station holding areas; they are taken

and inventoried for return on the person’s release). Plaintiffs in this class action contend that taking more than
No. 09-1498 3

two hours to perform the steps needed to get from the

generation of the CB number to the suspect’s release

necessarily makes detention unreasonable and violates

the fourth amendment. The district court agreed with

that submission. See 621 F. Supp. 2d 608, 620 (N.D. Ill.

2008). Before beginning what could be a lengthy process

of ascertaining each class member’s damages, the court

certified the legal issue for appeal under 28 U.S.C.

§1292(b). This court accepted the appeal.

Chicago asks us to hold that the concept of “reasonableness” is incompatible with a bright-line rule, such as

“no more than two hours between CB number and release.” In County of Riverside v. McLaughlin, 500 U.S. 44,

56–57 (1991), the Supreme Court established a 48-hour

line between arrest and presentation to a magistrate for

a probable-cause hearing. But that line, which is a good

deal longer than the district court’s two-hour rule, is

only a presumption: delay of more than 48 hours is presumed unreasonable and must be justified by the government; delay of 48 hours or less is presumed reasonable, and the arrested person bears the burden of

establishing that the length of his custody is nonetheless unreasonable.

The district court’s two-hour rule, by contrast, is not

a burden-allocation device; the district judge concluded

that it just does not matter why the process from CB

number to release takes more time. If all officers are tied

up with more urgent matters (a riot starts, for example,

or a group of youngsters is arrested, and juveniles’

higher processing priority delays the handling of adult
4 No. 09-1498

cases), that’s irrelevant. If so many people are arrested

at once that officers on duty in the stationhouse are

overwhelmed and a queue develops, that’s irrelevant. If

a person is too drunk or high on drugs to make a

voluntary decision to accept the conditions of the bond

(about 10% of people arrested in Chicago for fine-only

offenses are drunk or high), or is ill and receiving emergency medical treatment, that’s irrelevant too. Given the

contextual nature of analysis under the fourth amendment, see Illinois v. Gates, 462 U.S. 213, 232 (1983), it is

very hard to justify an inflexible two-hour rule.

More than hard. It is impossible. After Gerstein stated

that people may be held only a reasonable amount of

time after arrest, courts across the country began to

adopt numerical deadlines. The Supreme Court observed

in McLaughlin that the profusion of these arbitrary lines

was not only unwarranted but also complicated the

administration of the criminal-justice system. 500 U.S.

at 56. It adopted the 48-hour burden-shifting approach—

which, to repeat, is not a bright line of the kind the

district judge drew—to supersede the various time

limits that other courts had established, and to get

federal judges out of the business of “making legislative

judgments and overseeing local jailhouse operations.”

Ibid. The district judge in this case has done just the sort

of thing that McLaughlin disapproved.

Now it is true that the 48-hour burden-shifting approach does not apply when the police don’t plan to

present the suspect to a magistrate for a probable-cause

hearing. See Chortek v. Milwaukee, 356 F.3d 740, 746–47
No. 09-1498 5

(7th Cir. 2004). But this does not mean that a district

court can put McLaughlin’s rationale to one side and

establish a numerical definition of a reasonable detention. The Justices observed in Atwater that McLaughlin’s

general approach applies to arrests for fine-only offenses,

see 532 U.S. at 352, and may be supplemented by time

limits established by legislatures. After remarking in

Chortek on the fact that McLaughlin deals with the time

between arrest and presentation to a magistrate, we

did not go on to establish a numerical definition of a

reasonable time between arrest and release. Nor did

Gramenos or any of the other decisions on which plaintiffs rely. Those decisions call for an explanation of extended delay but do not establish an outer limit. The

only numerical line is McLaughlin’s, and it is a presumption rather than a maximum. Just as a district court

could not say “Chicago has 24-hour courts and lots

of police, so notwithstanding McLaughlin every person arrested in Chicago must be taken before a magistrate

within 12 hours”, so it can’t set a numerical limit for fineonly offenses, based on Illinois’ procedures for releasing

people on personal recognizance; McLaughlin tells us

that reasonableness must be assessed one case at a time.

It takes a legislature to adopt a rule such as “no more

than two hours may pass between a CB number and

release.” The reasonableness requirement of the fourth

amendment is a standard, not a rule.

Neither the State of Illinois nor the City of Chicago has

adopted a time limit for the period between arrest (or

the CB number) and release on bond. Even if they had,

enforcement would be a matter of state law. The fourth
6 No. 09-1498

amendment does not create remedies for violations of

state or local law. See Virginia v. Moore, 553 U.S. 164 (2008).

Nor does the fourth amendment give any special status

to CB numbers. The district court did not explain why

it set a time limit for a particular part of the process.

What is reasonable, or not, is how much time passes

between arrest and release, in relation to the reasons

for detention; the time for each step along the way is

not subject to an independent limit. See United States v.

Childs, 277 F.3d 947 (7th Cir. 2002) (en banc). None of

the class members was held more than 24 hours in

total, and none of the representative plaintiffs was held

more than 161⁄4 hours. The median time between the

CB number and release was 3.75 hours during the

52 months covered by the class definition; the mean

time was 4.42 hours. The length of detention would not

decrease if Chicago were to reallocate how its officers’

time is devoted, so that it would take longer to do

identity and warrant checks (steps that precede the CB

number) while the processing after the CB number

were expedited by the assignment of additional personhours to those chores. Yet that’s the sort of reallocation

that the district court’s order would lead to.

What remains true, as McLaughlin observed and Chortek

reiterated, is that detention less than 48 hours may be

unreasonably long. Needless delay, or delay for delay’s

sake—or, worse, delay deliberately created so that the

process becomes the punishment—violates the fourth

amendment. McLaughlin, 500 U.S. at 56, 59. Indeed, we

suggested in Gramenos and Chortek that detentions

as brief as four hours could be excessive and must be
No. 09-1498 7

justified. But the plaintiff bears the burdens of proof and

persuasion on the contention that any particular detention was excessive, and the court must examine not

only the length of a given detention but also the reasons

why release was deferred. A series of decisions finding

one or another delay unreasonable (or justified) may

lead Chicago to modify its policies, but no numerical

shortcut will cover all situations.

This means not only that the district court erred in

prescribing a two-hour limit from CB number through

release, but also that the class must be decertified. The

premise of the class certification is that one rule

applies to all members. Fed. R. Civ. P. 23(b)(3). Because

reasonableness is a standard rather than a rule, and

because one detainee’s circumstances differ from another’s, common questions do not predominate and

class certification is inappropriate. So we held in Harper

v. Sheriff of Cook County, 581 F.3d 511 (7th Cir. 2009),

another case arising from the procedures used to

process newly arrested persons before release on bond.

Everything said in Harper is equally applicable here.

The three individual plaintiffs may be able to show that

they were held unreasonably long, but they must do so

without the benefit of a two-hour cap, and their claims

must proceed as personal rather than class litigation. The

Supreme Court suggested in McLaughlin that class treatment might be appropriate if the class sought to establish

that a jurisdiction had adopted a policy of deliberate

delay. 500 U.S. at 59. That sort of policy could be ended

by an injunction. We do not foreclose the possibility of
8 No. 09-1498

such class-wide relief here, but the record so far

does not establish deliberate delay. The district court’s

decision is reversed, and the case is remanded for proceedings consistent with this opinion.

7-23-10