West of the Loop, in between two massive railyards, sit hundreds upon hundreds of cars impounded by the city of Chicago. From the impound lot, you get a clear view of the city’s famous skyline, anchored by the Willis Tower. The Windy City is famous for the size of its skyscrapers, but the size of its impound lots is also overwhelming. In addition to this lot, four more stretch across the city, each packed with vehicles from the tens of thousands of Chicago residents and visitors that get ensnared by the city’s impound system each year.
Jerome Davis and Veronica Walker-Davis found themselves caught in this racket through no fault of their own. In May of 2018, the Davises took their family car, a 2006 Lexus E330, to a repair shop. At some point, a shop employee took their car on a joyride without the Davises’ permission or knowledge. The police stopped the car, arrested the employee for driving on a revoked license, and impounded the car. When the Davises called the shop asking why it was taking so long for their car to be finished, the shop lied to them saying it was just waiting for parts.
The Davises kept calling the shop until an employee admitted that the car had actually been impounded nearly three weeks before. Veronica promptly requested a hearing, and showed up with evidence that the car had been in the shop. But her innocence was no defense under Chicago’s ordinances. The court ruled that the Davises must pay thousands to get their car back. Veronica was shaken by the ruling, stating that it made her feel “like a criminal,” even though she had done nothing wrong.
It took time, however, for the Davises to collect the amount owed. And, when Veronica and Jerome went to get their car, they were told that it was gone. The city had already disposed of it; either by selling it, scrapping it, or keeping it for police use.
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The Davises’ story is not unique. Spencer Byrd, a Chicago resident and part-time auto mechanic, was giving a client whose car was broken a ride home when the Chicago police stopped him for having a broken turn signal. The police searched Spencer and his client and, while they found nothing on Spencer, they discovered a bag of heroin in the client’s pocket. Even though Spencer did not know about the drugs, the officers impounded his car.
A Cook County Circuit Court judge was moved by Spencer’s story and ordered that his car be returned. Despite that order, however, the city will not release Spencer’s car until he pays all of the towing and storage fees. Adding insult to injury, the city will not even permit Spencer to retrieve his tools—which he needs for his work. Spencer cannot afford the fees, and so the car stays in the pound. Today, the total balance of storage and towing fees that Spencer would need to pay to reclaim his car is more than $17,000. Like the Davises, Spencer continues to be punished not for what he did, but for the actions of another person.
What happened to the Davises and Spencer happens to thousands of Chicagoans each year. The city seizes and impounds cars, refusing to give them back unless the cars’ owners pay steep fines and fees. The city demands payment even before a judge issues a final order finding the owner responsible to pay. All the while, fees pile up, making it even harder to get a car back.
Chicago’s impound racket captures cars for a wide range of offenses, and owners must pay steep fines and fees to free their car
Chicago tows and impounds cars for two dozen different offenses, requiring owners to pay steep fines and fees to extricate their vehicle.[c]Chicago, Ill., Mun. Code § 2-14-132.[/c] The offenses for which cars can be impounded include things like driving with a suspended license,[c]Chicago, Ill., Mun. Code § 9-80-240.[/c] playing audio that can be heard 75 feet away,[c]Chicago, Ill., Mun. Code § 9-76-145.
[/c]littering, [c]Chicago, Ill., Mun. Code § 7-28-390.
[/c] and the presence of illicit drugs in a car.[c]Chicago, Ill., Mun. Code § 7-24-225.[/c]
Car owners face three kinds of costs:
The city towed almost 22,000 cars under this program in 2017, making a trip to the pound “practically a rite of passage for city car owners.”[c]Elliott Ramos, Chicago’s Towing Program Is Broken, WBEZ 91.5 Chicago, http://interactive.wbez.org/brokentowing/ (last visited Apr. 16, 2019).[/c]
After a car has been towed and impounded, the owner must navigate a bureaucratic maze in order to get it back
After the city impounds a car, it sends notice by mail to the owner of the car.[c]Chicago, Ill. Mun. Code § 2-14-132.[/c] The owner must then request a hearing in person at the Department of Administrative Hearings. Of course, people must make their way downtown using a mode of transportation other than their impounded car. Many are forced to take time off of work to simply request a hearing.Hearings are run by administrative law officers (ALOs), city lawyers employed by a mayoral appointee. In most cases, two hearings are held—preliminary and full. A preliminary hearing is lightning fast. No witnesses are called, the city attorney reads the impound report, which the car’s owner has no opportunity to question or challenge, and the ALO issues a decision. If the ALO determines there was probable cause to impound the car, he authorizes the city to continue impounding it and sets a full hearing about a month later. If not, the ALO orders the car released, a rare occurrence.
At the full hearing, the official who ordered the car impounded (typically a police officer) testifies about the events leading up to the impound. The car owner has the opportunity to cross-examine the officer, call her own witnesses, and put forth a defense. The ALO then issues his decision. If the ALO determines it was more likely than not that the car was used in the relevant offense, the ALO finds the owner liable and orders her to pay the city the administrative penalty, towing fee, and storage fees. Except in very narrow circumstances, the ALO does not consider the innocence or guilt of the car owner.The impound system is separate from any criminal or forfeiture proceedings. Even if that separate case ends in an acquittal or the charges are dropped, the impound proceedings still march on. Moreover, a car owner is not entitled to an attorney at the impound hearings if she cannot afford it. Accordingly, many owners are forced to navigate the maze of hearings and proceedings without any help.
Little protection for innocent owners
Chicago’s impound system provides only three defenses for innocent owners.[c]Chicago, Ill. Mun. Code § 2-14-132(h).[/c] The first is if a car was stolen at the time of the offense and it had been reported stolen to the police within 24 hours of the theft being discovered. The second is if the car had been sold to another person prior to the violation. The final defense is that the car was operating as a common carrier (such as a Fed-Ex or Uber driver) and the owner did not know about the violation. That is it. Unless you fit into those very narrow categories, you are out of luck. The city deems innocent owners responsible, like the Davises and Spencer Byrd, who were not involved in the offense that resulted in the city impounding the vehicle.
The city holds cars ransom until the owner can pay the amount owed
The first opportunity a car owner has to get her car back is after the preliminary hearing. If the ALO orders that probable cause existed to impound the car and schedules a full hearing, the car owner can get her car back only if she pays the administrative penalty, the towing fee, and storage fees that have accrued. This payment essentially operates as a bond for the city: While the owner gets the car back, she is forced to pre-pay the administrative penalty. But no judge has ruled that she is liable for the impound. Even though she will be refunded the fees and penalty (without interest) if the ALO rules at the full hearing that her car was not eligible for impound, she is still forced to pay for something she might not ultimately be required to pay.
If the ALO deems the owner liable for the impound at the full hearing, she is assessed the full penalty and fees and can never get her car back without paying everything owed. On top of that, the city will never release a car—either before or after the full hearing—unless the owner pays every other outstanding ticket, fine, or other fee owed to the government, even those completely unrelated to the impoundable offense. For many people it takes time—days, weeks, or longer—to compile the amount of money necessary to get a car out of impound. All the while, storage fees continue to build. But a car owner cannot wait too long, as the city keeps cars only for a short amount of time before the city disposes of the car, whether by selling it at auction, selling it for scrap, or keeping it for police use.[c]Chicago, Ill. Mun. Code §§ 2-14-132, 9-92-100.[/c]
And sale of the car does little to reduce the owner’s debt to the city. On top of losing her property, the amount she owes is not extinguished. Any proceeds the city generates by selling the car can be deducted from the towing and storage fees the owner owes—but never the administrative penalty—and the city gets to pocket any remaining money.[c]Chicago, Ill. Mun. Code § 9-92-100; 625 ILCS 5/4-211[/c]
Any debt created by the impound system follows the owner until she pays it off. The city sends debts to collections—with lucrative contracts to debt-collection agencies—and imposes liens until the debt is paid. Interest accrues on the amount owed, and Chicago has no statute of limitations on fines and fees, meaning the government can pursue the debt indefinitely.
Chicago’s impound system violates the Illinois and U.S. Constitutions in myriad ways. This lawsuit asserts three different types of claims.
First, the application of any punishment—fine or otherwise—to an innocent owner is inherently excessive under both the Illinois Constitution’s Proportionate Penalties Clause and the Excessive Fines Clause of the U.S. Constitution. Both of these provisions prohibit the government from imposing punishments that are disproportionate to the crime a person has committed. When a person has committed no offense, any fine is excessive.
It is clear that the federal Excessive Fines Clause applies to the actions of the city thanks to a recent U.S. Supreme Court decision in a case IJ litigated. In legal terms, the Eighth Amendment’s Excessive Fines Clause is applicable to states and municipalities under the Fourteenth Amendment’s Due Process Clause.[c]Timbs v. Indiana, 139 S. Ct. 682 (2019).[/c] The Court held that “[p]rotection against excessive punitive economic sanctions secured by the [Excessive Fines] Clause is . . . both fundamental to our scheme of ordered liberty and deeply rooted in this Nation’s history and tradition.”[c]Id. at 689 (internal quotation marks omitted).[/c]
Additionally, the Illinois Constitution contains a Proportionate Penalties Clause. This clause protects people from a penalty that is degrading, cruel or wholly disproportionate to the offense the penalty seeks to punish. In fact, it provides even greater protection than the Excessive Fines Clause.[c]People v. Gipson, 34 N.E.3d 560, 580 (Ill. App. 1st 2015).[/c] In analyzing whether a penalty is disproportionate and unconstitutional, Illinois courts look to objective evidence as well as the community’s changing standard of moral decency.[c]People v. Aikens, 63 N.E.3d 223 (Ill. App. 1st 2016).[/c]
Punishing an innocent owner is the very definition of excessive. A person who has no knowledge of someone else’s crime should not be held responsible for it. But that is the effect of Chicago’s impound system. Chicago tows cars for a wide range of activity and slaps the owner with the associated fines and fees regardless of whether the owner was involved in, or even knew about, any criminal activity. That is a disproportionate fine.
Second, Chicago’s impound system violates the right to due process under both the Illinois and U.S. Constitutions. Both documents protect the right of innocent Illinoisans against being forced to pay for the actions of others. But Chicago deprives innocent owners of their property rights by imposing fines that potentially result in losing their car due to someone else’s crime. Due process requires that the government give property owners the opportunity to demonstrate their innocence and avoid punishment for a crime someone else committed.
Due process also prevents the government from taking and keeping someone’s property before a judge has determined the owner is guilty of the offense. By conditioning the return of a car upon payment of a fine that no final judgment has demanded be paid, along with the payment of fees—which continue to accrue only because the city refuses to release the car—the government violates the core of due process.
Finally, it is an unreasonable seizure to hold a car as ransom until its owner can pay the full amount owed, whether or not they are guilty of the offense for which their car was impounded. Chicago refuses to release cars until their owners fork over the administrative penalty, towing fee, and storage fees that have accumulated.[c] In addition, cars will not be released until they bear all current state and local stickers and carry insurance.[/c] This policy treats cars as ransom, holding them for the sole purpose of ensuring payment to the city. But the city has other steps it can and does take to ensure it receives payment. By essentially taking cars hostage, the city deprives people of their cars until they can come up with substantial sums of money. This is an unconstitutional seizure.
Article I, Section 6 of the Illinois Constitution and the Fourth Amendment to the United States Constitution protect against unreasonable searches and seizures. A seizure must be reasonable both at the moment an item is taken from its owner and throughout the entire time the government possesses the item.[c]Brewster v. Beck, 859 F3d 1194 (9th Cir. 2017); see also Manuel v. City of Joliet, 137 S. Ct. 911 (2017).[/c] In other words, the protection against unreasonable searches and seizures is not limited to a particular moment in time. Rather, the government’s holding of property must be continually justified. Debt collection of fines and fees, which occurs in other contexts without holding property ransom, does not justify the continued seizure of a person’s vehicle.
Institute for Justice Attorneys Diana Simpson and Kirby Thomas West represent Veronica Walker-Davis, Jerome Davis, and Spencer Byrd. They are assisted by Jeffrey Leon of the Pavich Law Group P.C. as local counsel.
Founded in 1991, the Institute for Justice is the national law firm for liberty and the nation’s leading advocate for private property rights. Since 1991, IJ has litigated in the courts of law and in the court of public opinion to defend free speech, property rights, economic liberty, and educational choice. IJ has challenged unconstitutional fines and fees in other places. In 2018, IJ secured a consent decree in Pagedale, Missouri in which the city agreed to widespread reforms of its unconstitutional ticketing scheme. In 2018 and 2019, IJ reached agreements ending the use of private law firms to enforce city code violations in the California cities of Indio and Coachella. IJ is currently suing Doraville, Georgia over its excessive fines for minor code violations. IJ is a nonprofit that does not charge its clients for representation.