In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1498
R ONALD P ORTIS, M ADRIC L ANCE, and
E MMETT L YNCH, individually and
on behalf of a class,
Plaintiffs-Appellees,
v.
C ITY OF C HICAGO, 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.
A RGUED S EPTEMBER 14, 2009—D ECIDED JULY 23, 2010
Before E ASTERBROOK, Chief Judge, and B AUER and
E VANS, Circuit Judges.
E ASTERBROOK, Chief Judge. The City of Chicago occa-
sionally makes custodial arrests of persons who have com-
mitted 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 iden-
tification that would allow the police to write a ticket.
Still, even an uncooperative person is entitled to be re-
leased 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 prob-
able 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 appro-
priate in police station holding areas; they are taken
and inventoried for return on the person’s release). Plain-
tiffs 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 “reasonable-
ness” is incompatible with a bright-line rule, such as
“no more than two hours between CB number and re-
lease.” 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 pre-
sumed unreasonable and must be justified by the gov-
ernment; delay of 48 hours or less is presumed rea-
sonable, and the arrested person bears the burden of
establishing that the length of his custody is nonethe-
less 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 emer-
gency medical treatment, that’s irrelevant too. Given the
contextual nature of analysis under the fourth amend-
ment, 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 ap-
proach 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 deten-
tion. 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 plain-
tiffs rely. Those decisions call for an explanation of ex-
tended delay but do not establish an outer limit. The
only numerical line is McLaughlin’s, and it is a presump-
tion 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 per-
son arrested in Chicago must be taken before a magistrate
within 12 hours”, so it can’t set a numerical limit for fine-
only 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 16¼ 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 person-
hours 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 deten-
tion 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 an-
other’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 treat-
ment 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 pro-
ceedings consistent with this opinion.
7-23-10