Chermane Smith v. City of Chicago

In the
United States Court of Appeals
For the Seventh Circuit
____________

No. 07-1599
C HERMANE SMITH, E DMANUEL P EREZ,
T YHESHA B RUNSTON, M ICHELLE W ALDO ,
K IRK Y UNKER, and T ONY W ILLIAMS,
Plaintiffs-Appellants,
v.

C ITY OF C HICAGO, P HILIP C LINE, Superintendent,
Chicago Police Department, and R ICHARD A. D EVINE,
Cook County State’s Attorney,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 C 6423—Elaine E. Bucklo, Judge.
____________
A RGUED JANUARY 11, 2008—D ECIDED M AY 2, 2008
____________

Before B AUER, P OSNER, and E VANS, Circuit Judges.
E VANS, Circuit Judge. The Chicago Police Department,
acting under the Illinois Drug Asset Forfeiture Procedure
Act (DAFPA), 725 ILCS 150/1 et seq. (2004), seized property
belonging to the plaintiffs. In response, the plaintiffs filed
this case, under 42 U.S.C. § 1983, claiming that when
property is seized under the Act, due process requires that
2 No. 07-1599

they be given a prompt, postseizure, probable cause
hearing, even though the DAFPA does not require any
such hearing.
In the district court, the plaintiffs conceded, based on
our decision in Jones v. Takaki, 38 F.3d 321 (7th Cir. 1994),
that their complaint should be dismissed. It was. And they
are now here asking us to reexamine Jones in light of
United States v. James Daniel Good Real Property, 510 U.S. 43
(1993), and Mathews v. Eldridge, 424 U.S. 319 (1976), two
cases that predate Jones but were not cited in that opinion.1
DAFPA permits the seizure of vehicles, aircraft, and
vessels along with money involved in certain drug
crimes. The property may be seized by a law enforcement
officer without a warrant where there is probable cause
to believe it was involved in a drug crime and is, accord-
ingly, subject to forfeiture. When property is seized,
forfeiture proceedings must be instituted. As relevant here,
the law enforcement agency that seizes the property—in
this case, the Chicago police department—must, within
52 days, notify the state’s attorney of the seizure and the
circumstances giving rise to the seizure. Once the state’s
attorney receives notice of the seizure, she must do one
of two things, depending on the value of the property
seized. If it is worth more than $20,000, she must file
judicial in rem forfeiture proceedings within 45 days. If the
nonreal property is worth less than $20,000, she must
notify the owner, within 45 days, regarding a possible
forfeiture. The owner then has 45 days in which to file a

1
Interestingly, Attorney Thomas Peters of Chicago argued this
case before us in January, as well as Jones, before a different
panel, almost 14 years ago.
No. 07-1599 3

verified claim to the property with the state’s attorney. If a
claim is filed and bond is posted, the state’s attorney
must file judicial-in-rem forfeiture proceedings within
45 days. Thus, under this statutory scheme, for property
worth more than $20,000, 97 days can elapse between
the seizure of the property and the filing of judicial for-
feiture proceedings. For property worth less than $20,000,
it could be a maximum of 187 days—though we note that
the claimant, by acting swiftly to file a claim, can reduce
that time to 142 days. The claim here, as it was in Jones, is
that because so much time can elapse before forfeiture
proceedings are started, it violates due process not to
have a postseizure/preforfeiture hearing of some type.
We seemed to reject the claim in Jones. But our present
reexamination of the issue convinces us that the answer
is not so clear. In Jones, our focus was on the issue of class
certification. We determined that under United States v.
$8,850, 461 U.S. 555 (1983), and Barker v. Wingo, 407 U.S. 514
(1972), the plaintiffs’ claims were not typical of the claims
of the class, and class certification was improper. Because
the plaintiffs had conceded that, if we used the Barker
analysis, summary judgment was properly granted to
the defendants, we gave only slight consideration to the
merits of the claim and affirmed the judgment for the
city. Here, once again, the plaintiffs argue that Good and
Krimstock v. Kelly, 306 F.3d 40 (2nd Cir. 2002), establish
that the proper due process analysis for their claim is set
out in Mathews, rather than in Barker. Their argument is
persuasive and prompts us to take another run at the issue.
It has long been understood that forfeiture of personal
property, which is easily capable of being moved or
concealed, involves different concerns from the forfeiture
of real property and does not require a preseizure hearing.
4 No. 07-1599

Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663
(1974). A postseizure hearing is, however, required. The
question is the timing of that hearing. In $8,850, 461
U.S. at 562-63, the Court framed the issue as “when a
postseizure delay may become so prolonged that the
dispossessed property owner has been deprived of a
meaningful hearing at a meaningful time.” The Court
determined in that circumstance the appropriate analysis
was that in Barker, a case involving a defendant’s right to
a speedy trial, once proceedings have begun against him:
The Barker balancing inquiry provides an appropriate
framework for determining whether the delay here
violated the due process right to be heard at a mean-
ingful time.
At 564. The Barker test requires consideration of the length
of the delay, the reason for the delay, the defendant’s
assertion of his right, and the prejudice to the defendant.
A few years later, relying on $8,850, the Court used the
Barker test to evaluate administrative proceedings fol-
lowing the seizure by custom agents of a new Jaguar
Panther automobile that was not properly declared at the
Canadian border (it was purchased in Switzerland,
shipped to Vancouver, and stopped at a U.S. border
checkpoint in Blaine, Washington). United States v. Von
Neumann, 474 U.S. 242 (1986).
As we shall see, there are significant reasons to doubt
whether these cases should be controlling in the situa-
tion before us. To explain why, we start with Good, even
though that decision involves real, not personal property.
Drugs and drug paraphernalia were found in defendant
Good’s Hawaii home. The federal government sought
civil forfeiture of the house and the land on the basis that
the property had been used in connection with a drug
No. 07-1599 5

offense. One issue before the Court was whether in the
absence of exigent circumstances, the Due Process Clause
prohibits the seizure of real property without a prior
adversarial hearing. The answer was that a preseizure
hearing is required. The Court looked to the Mathews
factors: the “private interest affected by the official action;
the risk of an erroneous deprivation of that interest
through the procedures used, as well as the probable
value of additional safeguards; and the Government’s
interest, including the administrative burden that addi-
tional procedural requirements would impose.” 510 U.S.
at 53.2
Relying in part on Good, the Court of Appeals for the
Second Circuit in Krimstock applied the Mathews factors to
the seizure of automobiles under New York City’s Admin-
istrative Code, concluding that a prompt postseizure
retention hearing, with adequate notice, is required for
motor vehicle seizures. In other words, after the seizure
and before the actual forfeiture proceeding, a hearing

2
Mathews itself, of course, involved the termination of Social
Security disability benefit payments, but the use of its analysis
is pervasive. It has been used in everything from the analysis
of prison transfers (Wilkenson v. Austin, 545 U.S. 209 (2005)), to
the evaluation of police department procedures for verifying
that the right person was in custody (Hernandez v. Sheahan, 455
F.3d 772 (7th Cir. 2006)), to a company’s claim that its rights
were violated by a delay in notice that it might be liable to
a worker under the Black Lung Benefits Act (Roberts & Schaefer
Co. v. Director, Office of Workers’ Compensation Programs, 400 F.3d
992 (7th Cir. 2005)). We even mentioned Mathews—though
we did not need to reach the issue—in a case involving the
seizure of a dog (Wall v. City of Brookfield, 406 F.3d 458 (7th
Cir. 2005)).
6 No. 07-1599

must be held to test whether the vehicle can be held. As a
basis for its conclusion, the court cited a number of salient
factors, including the possibility that there may be an
innocent owner of the seized automobile. The importance
of an automobile as a mode of transportation and, for
some people, a means to earn a living was another impor-
tant factor in assessing the private interest. Others were
the availability of hardship relief and the length of the
deprivation. In addition, even if an individual ultimately
prevails, an automobile continues to depreciate during
the time it is retained. In contrast, the court found that
the governmental interest could be adequately protected
by a bond or a restraining order to prevent the sale or
destruction of the automobile. In short,
[P]romptly after their vehicles are seized . . . as alleged
instrumentalities of crime, plaintiffs must be given
an opportunity to test the probable validity of the
City’s deprivation of the vehicles pendente lite, in-
cluding probable cause for the initial warrantless
seizure.
The Krimstock court properly, we think, distinguished
Von Neumann and $8,850. $8,850 concerns the speed with
which the civil forfeiture proceeding itself is begun—a
different question from whether there should be some
mechanism to promptly test the validity of the seizure. At
first glance, Von Neumann seems on point, but there are
significant differences between that case and ours. Von
Neumann involved proceedings for remission or mitiga-
tion under U.S. customs laws, not forfeiture under state
law. More importantly, the customs laws allowed pro-
cedures for Von Neumann to obtain a speedy release of
his automobile prior to the actual forfeiture hearing. For
one thing, he could file a motion under Federal Rule of
No. 07-1599 7

Criminal Procedure 41(e) for the return of his vehicle. He
had, in effect, relief similar to that which the plaintiffs
in this case seek. In fact, Von Neumann’s vehicle was
released in 2 weeks after he posted bond. Furthermore,
the entire delay about which the parties were in dispute
was a mere 36 days. In significant ways, the case bears
little resemblance to Krimstock or to our case.
The one thing that becomes clear is that, like many other
due process issues, the answer as to whether a prompt
hearing is required grows out of the situation. Our re-
consideration of the issue leads us to find that the proce-
dures set out in DAFPA show insufficient concern for
the due process right of the plaintiffs.
All in all, we agree with Krimstock. The private interest
involved, particularly in the seizure of an automobile, is
great. Our society is, for good or not, highly dependent
on the automobile. The hardship posed by the loss of one’s
means of transportation, even in a city like Chicago, with
a well-developed mass transportation system, is hard to
calculate. It can result in missed doctor’s appointments,
missed school, and perhaps most significant of all, loss
of employment. This is bad enough for an owner of an
automobile, who is herself accused of a crime giving rise
to the seizure. But consider the owner of an automobile
which is seized because the driver—not the owner—is
the one accused and whose actions cause the seizure. The
innocent owner can be without his car for months or
years without a means to contest the seizure or even to
post a bond to obtain its release. It is hard to see any rea-
son why an automobile, not needed as evidence, should
not be released with a bond or an order forbidding its
disposal. The person from whom cash is seized also has
a strong interest in a hearing, though obviously the
posting of a cash bond for cash is an absurdity.
8 No. 07-1599

On the other hand, we recognize the City’s interest in
being certain that a vehicle is not destroyed before a
court can issue a judgment in the forfeiture proceedings.
We also understand that the preforfeiture hearing would
impose some administrative burden on the City. How-
ever, due process always imposes some burden on a
governing entity. We are not contemplating pro-
tracted proceedings, but rather notice to the owner of the
property and a chance, perhaps rather informal, to show
that the property should be released.
As an aside, we note that some states have procedures
which provide an early opportunity to challenge the
retention of seized property. The Krimstock court cited a
Florida statute, which provides that seizing agencies
must make a diligent effort to notify the owner. Notice
must be mailed within 5 working days after the seizure
and must state that an adversarial preliminary hearing
may be requested within 15 days of receipt of the notice.
The hearing must be held within 10 days after the re-
quest is received. Fla. Stat. 932.703(2)(a). Arizona pro-
vides for an order to show cause hearing if an application
is filed by an owner or interest holder in the property. The
owner must file the application within 15 days of notice
of the seizure. A.R.S. s. 13-4310. Although not providing
for a preforfeiture hearing, even the ordinance in
Krimstock provided for more expeditious handling of
forfeiture proceedings than does the DAFPA.
In short, our fresh look at this issue causes us to con-
clude that given the length of time which can result
between the seizure of property and the opportunity for
an owner to contest the seizure under the DAFPA, some
sort of mechanism to test the validity of the retention of
the property is required. The judgment dismissing the
No. 07-1599 9

complaint, therefore, must be reversed. The district court,
with the help of the parties, should fashion appropriate
procedural relief consistent with this opinion. The hearing
should be prompt but need not be formal. We leave it to
the district court to determine the notice requirement
and what a claimant must do to activate the process. We
do not envision lengthy evidentiary battles which would
duplicate the final forfeiture hearing. The point is to pro-
tect the rights of both an innocent owner and anyone else
who has been deprived of property and, in the case of an
automobile or personal property other than cash, to see
whether a bond or an order can be fashioned to allow
the legitimate use of the property while the forfeiture
proceeding is pending.
One other matter requires mention. The City of Chicago
and the police superintendent argue that the complaint
should be dismissed against them pursuant to Monell v.
Department of Social Services, 436 U.S. 658 (1978). We reject
the argument at this time. Plaintiffs’ complaint contains
allegations which, if true, would survive Monell. They
are that actions were taken in accordance with City
policies and procedures.
Because our opinion signals a reversal of course from
Jones, we have circulated it under Circuit Rule 40(e) to all
judges of the court in regular active service (Judge Rovner,
however, did not participate in this case) and no judge
voted to rehear the matter en banc.
Accordingly, the judgment of the district court is
R EVERSED and the case is R EMANDED for proceedings
consistent with this opinion.

USCA-02-C-0072—5-2-08