Gates v. City of Chicago

In the

United States Court of Appeals
For the Seventh Circuit

No. 08-1455

E LTON G ATES and L USTER N ELSON,
Plaintiffs-Appellants,
v.

C ITY OF C HICAGO, P HILIP J. C LINE,
JAMES E CHOLS, et al.,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 2155—Ruben Castillo, Judge.

A RGUED A PRIL 14, 2009—D ECIDED S EPTEMBER 27, 2010

Before K ANNE, R OVNER and W OOD , Circuit Judges.
R OVNER, Circuit Judge. Persons who are arrested by
Chicago police officers often are carrying small amounts
of cash which the officers seize 1 and inventory at the

1
The plaintiffs say the money was “seized” and the City says
it was “recovered.” The district court doubted there was any
(continued...)
2 No. 08-1455

time of arrest. The plaintiffs here were arrestees from
whom police officers confiscated small amounts of cash.
The arrestees unsuccessfully sought the return of their
money and challenged the City’s policies governing the
return of seized funds. They also challenged the notice
the City provided of those policies. The district court
granted summary judgment to the City on the plain-
tiffs’ federal due process claims and dismissed their
state law restitution claims as moot. The plaintiffs
appeal and we affirm in part, and vacate and remand
in part.

I.
Chicago police officers arrested Elton Gates for aggra-
vated battery, in violation of 720 ILCS 5/12-4(b)(6), and
Luster Nelson for manufacture or delivery of crack
cocaine in violation of 720 ILCS 570/401(c)(2). The
officers seized $113 in cash from Gates at the time of
his January 14, 2003 arrest, and $59 from Nelson on

1
(...continued)
difference. Gates v. Towery, 507 F.Supp.2d 904, 915 (N.D. Ill.
2007) (hereafter “Gates II”). We agree with the district court.
The City’s position is curious in light of its reliance on 725 ILCS
5/108 et seq. as providing adequate procedures for the return
of the money. The relevant parts of Section 108 address the
“Custody and Disposition of Things Seized,” 725 ILCS 5/108-2;
the “Return to Court of Things Seized,” 725 ILCS 5/108-10; and
the “Disposition of Things Seized,” 725 ILCS 5/108-11 (emphasis
added).
No. 08-1455 3

February 4, 2004. Under procedures in place at the
Chicago Police Department at that time, each man was
issued 2 a property inventory receipt that listed the prop-
erty seized, a court date, the charges, and the names
and star numbers of the police officers effecting the
seizures. In each instance, the officer filling out the in-
ventory receipt indicated that the property would be
held “for investigation and/or evidence.” Although the
format of the inventory receipts changed slightly be-
tween the time Gates was arrested in 2003 and Nelson
was arrested in 2004, one part of the form stayed essen-
tially the same: the right-side column labeled “Notice
to Property Owner or Claimant,” which we will refer to
as the “Notice.” 3

2
Although neither side is precise in describing how the
inventory receipt is issued to the arrestee, we gather that the
receipt is physically handed directly to the arrestee at the
time the property is taken and inventoried. The face of the
receipt directs the officer to “give this copy to arrestee.”
3
Both Gates’ and Nelson’s receipts contain the “Notice to
Property Owner or Claimant.” Inexplicably, the district court
found that Nelson’s receipt did not contain the Notice, even
though both sides agree, and our review confirms, that
Nelson’s receipt does in fact contain the Notice. See Gates II, 507
F.Supp.2d at 911 n.2. We can only assume the district court
was viewing some other version of the receipt. At oral argu-
ment, the City explained that the copy of the inventory receipt
provided to the state court judge differed from the form
provided to the arrestee. It is possible that the district court
judge was viewing the copy normally given to the state
(continued...)
4 No. 08-1455

In relevant part, the Notice states:4
Property Release Order (CPD-34.554) Required
Return to the police station where your property
was taken from you. Give this copy to the desk
officer in charge for forms and instructions neces-
sary for the return of your property.
Upon official notification that inventoried property
is available for release, the subject owner or claimant
must pick up the property within 30 days of notifica-
tion or the property will be legally disposed of ac-
cording to the direction of the law.
****

3
(...continued)
court judge and that the Notice was omitted from that copy.
This is but one instance of the confused state of the record, and
it is a significant one; it would be impossible for the district
court to judge the adequacy of notice when the substance of
the notice was uncertain.
4
The Notice is printed almost entirely in all capital letters,
except for two citations to Illinois Statutes. Indeed, even the non-
Notice parts of the inventory form appear in all capital letters.
For ease of reading, we will use a more conventional format.
We are also omitting a paragraph in the middle of the Notice
which is not relevant to the issues here and which neither
side cites. Finally, there is some testimony in the record that
there is a box to the left of the “Property Release Order (CPD-
34.554) Required” line that officers check when that form is
required. The box is not visible on any of the photocopies
that appear in the record and no check mark is visible on
either plaintiff’s form.
No. 08-1455 5

Arrestee Information
Seizure without search warrant—(Ill. Rev. Stat. Chap.
38, Sec. 108-2): (725 ILCS 5/108-2)
Give this copy to arrestee. If not accepted, attach to
Copy 5.
Seizure with search warrant—(Ill. Rev. Stat. Chap 38,
Sec. 108-10) (725 ILCS 5/108-10)
Attach this copy to search warrant.
R. 214-2, Ex.2 (“Gates Receipt”) and Ex. 3 (“Nelson Re-
ceipt”).5
Gates later pled guilty to aggravated battery of a
police officer and was sentenced to two years’ proba-
tion. After unsuccessfully seeking the return of his $113,
Gates filed a class action law suit against the City of
Chicago, the Superintendent of the Police Department
(then Philip Cline, and now Jody Weis), and the officers
involved in his arrest.6 Gates alleged that the notice
given on the inventory receipt was misleading because
it advised arrestees that they would be notified when

5
There is one minor difference. The sentence reading, “If not
accepted, attach to Copy 5,” appears on the form for Gates
but is absent from the form for Nelson. This sentence is irrele-
vant to the issues presented on appeal and is not cited by
either side.
6
The plaintiffs do not appeal the judgment granted in favor
of the individual defendants. We will refer to the remaining
defendant as “the City.”
6 No. 08-1455

their property was available for release but the City
never sends such a notice and he did not receive one.
He also alleged that he went to the City of Chicago’s
Evidence and Recovered Property Section (“ERPS”)
several times between July 2003 and February 2004,
each time demanding the return of his money. On each
occasion, he was told by a Chicago police officer that
he could not retrieve his property unless he secured a
signed release from the arresting officer. Gates asserted
that he repeatedly attempted to secure a signed release
from the arresting officers but was told every time that
the officers were not available and that no one else
could authorize the release of his property.
The charges against Nelson were dismissed approxi-
mately one month after his arrest. Nelson’s experience
seeking the return of his money paralleled that of
Gates. Like Gates, he alleged that he went to ERPS
several times and was told he needed a release order
from the arresting officer before his money would be
returned to him. Like Gates, he sought out the ar-
resting officers on multiple occasions but the officers
were unavailable. He sued the City, the Superintendent
and the arresting officers alleging that the notice on the
inventory receipt was misleading because it indicated
he would be notified when his property was ready
for release even though the City never issues such a
notification and he did not receive one.
Both Gates and Nelson asserted that they were
deprived of their property without due process of law
because: (1) the defendants seized the property and
No. 08-1455 7

retained it for months without instituting forfeiture pro-
ceedings wherein they could establish their right to
the return of their property; (2) the inventory receipt
falsely represented that they would be notified when
their property was available for release; (3) the de-
fendants continued to retain the property after con-
clusion of the criminal proceedings even though there
was no basis in law or fact to seek forfeiture of the
funds at that point; (4) after seizing property without
prior judicial authorization, the defendants retained the
property without seeking forfeiture or simply returning
the property; and (5) the City’s policy to retain seized
property, to provide a false and misleading inventory
receipt, and to refuse to promptly return the property
at the conclusion of criminal proceedings is designed
to delay the return of non-forfeitable property to its
rightful owners. For these alleged violations of 42 U.S.C.
§ 1983 (hereafter “Section 1983”), both plaintiffs sought
the return of their property, unspecified reasonable
damages, and an award of costs and reasonable attor-
neys’ fees. The defendants also sought to certify a class
of persons arrested after March 23, 2002, from whom
the defendants seized property pursuant to the City’s
policy. Gates and Nelson later added state law claims
for conversion, replevin, unjust enrichment and construc-
tive trust, among other things, seeking damages and
the return of their money.
Two days after Gates filed suit, the General Counsel
to the Superintendent of Police sent a check for $113 to
Gates’ attorney with a letter offering to pay interest.
8 No. 08-1455

Gates’ attorney returned the check. Approximately one
month after Nelson was added as a plaintiff, the General
Counsel sent a check for $59 to counsel for Nelson
(both men are represented by the same attorney), also
accompanied by a letter offering to pay interest. The
plaintiffs’ lawyer returned that check as well.
The district court eventually certified two classes of
persons who, between March 23, 2002 and December 14,
2004, had property taken from them at the time of
their arrests, whose criminal cases had been resolved in
the trial court, where no forfeiture action had been
initiated and the time for filing a forfeiture action had
expired, where the property was not inventoried as
evidence in any criminal investigation, where the
arrestee was issued an inventory receipt that indicated
the arrestee would be notified when the property was
available for release, and where the money had not
yet been returned to the arrestee. One class consisted
of narcotics arrestees and the other class was comprised
of persons arrested for offenses not related to narcotics.
The defendants petitioned for interlocutory review of
the class certification. We granted that petition and af-
firmed. See Gates v. Towery, 430 F.3d 429 (7th Cir. 2005)
(hereafter “Gates I”).
In Gates I, we rejected the City’s argument that class
certification was improper because the case was
mooted by the City’s offer to return the funds to the
named plaintiffs. We agreed with the district court that
the claims of the class representatives were not moot
because the City’s tender to Gates and Nelson was incom-
No. 08-1455 9

plete. The plaintiffs sought for themselves (and the
class) the return of the seized property, prejudgment
interest, compensatory damages for any injury attrib-
utable to the loss of the property’s use, and compensa-
tion for the value of their time spent trying to retrieve
their property. We noted that a tender is insufficient
unless it makes a plaintiff whole and thus must include
filing fees and other costs. 430 F.3d at 431. We also
noted that a promise of interest later is not the same as
cash today, especially in light of the City’s history of delay
in making payments. As for compensatory damages,
we remarked that a person whose rights have been vio-
lated under the due process clause may receive nom-
inal damages if he or she cannot show out-of-pocket loss
or other concrete injury. Yet the City offered nothing for
fees and costs of filing the suit, nothing for compensatory
damages (not even a dollar for nominal damages),
and only a promise of interest, to which a “prudent
litigant may attach a steep discount,” especially because
the City denied owing interest but offered to pay it only
as a good will gesture. 430 F.3d at 431. To eliminate
the controversy and render the case moot, we held that
a defendant must meet the plaintiff’s demands, which
the City here was unwilling to do. To the extent the
plaintiffs sought an injunction requiring the City to
compensate them for past losses, we remarked that
they were on a snipe hunt. “There’s no such animal,
beyond the equitable remedy of restitution—and the
City stands ready to hand over the amounts it seized,
in order to avoid unjust enrichment.” 430 F.3d at 432.
We concluded that Gates and Nelson were adequate
10 No. 08-1455

representatives to challenge the City’s old policies and
practices and that the suit could proceed as a class action.7
After we affirmed the class certification, the plaintiffs
were granted leave to file a fifth amended complaint.
The first three counts were individual and class claims
for violations of due process. The remaining counts
were grounded in state law and included individual and
class claims for conversion, replevin, unjust enrichment,
constructive trust, declaratory judgment under the
Illinois Uniform Disposition of Unclaimed Property Act
(“UDUPA”), and breach of fiduciary duty. For the
unjust enrichment, constructive trust, and breach of
fiduciary claims (collectively the “restitution claims”),
the plaintiffs sought the return of their money. Ulti-
mately, the district court dismissed the restitution
claims and denied a request to certify a restitution class
because those claims were moot. The court also granted
summary judgment in favor of the City on the federal
due process claims. The plaintiffs appeal.

II.
On appeal, the plaintiffs contend that the City was
not entitled to summary judgment on the due process
claims because the City did not provide meaningful

7
On December 14, 2004, the Chicago Police Department
modified the inventory form. The class action here includes
only persons arrested before that date, during the time the
prior form was in use.
No. 08-1455 11

notice of its inventory and property return procedures,
and because the City failed to provide adequate pro-
cedures for the return of their money. The plaintiffs
also challenge the dismissal of their restitution claims
and the refusal to certify a restitution class, arguing that
the named plaintiffs retained an economic interest in
class certification. Our review of all of the issues is
de novo. Lobzun v. United States, 422 F.3d 503, 507 (7th
Cir. 2005) (we review de novo whether the govern-
ment’s notice procedures complied with due process);
Everroad v. Scott Truck Systems, Inc., 604 F.3d 471, 475
(7th Cir. 2010) (we review de novo the district court’s
grant of summary judgment).

A.
We begin with the issue of meaningful notice. Both
the district court and the parties divide the notice
claims into two categories: narcotics arrests and non-
narcotics arrests. As the district court noted, state law
entitles all arrestees to an inventory of the items seized
from them. See 725 ILCS 5/108 et seq. Section 108-2 pro-
vides what is to be done when property is seized with-
out a warrant. 725 ILCS 5/108-2. Section 108-10 provides
the procedure when property is taken pursuant to a
warrant. 725 ILCS 5/108-10. In each instance, the police
officers are required to take an inventory of the items
seized, and the person from whom the items were
seized is entitled to a copy of that inventory. 725 ILCS
5/108-2 and 725 ILCS 5/108-10. To satisfy this require-
ment, the City provides arrestees with the property
12 No. 08-1455

inventory receipt we describe above, and on each receipt
is printed the Notice (quoted supra at 4-5) that purports to
describe what arrestees should do in order to reclaim
their property. The parties seem to agree that thousands
of inventory receipts were issued for cash each year
during the relevant time period, and the value of cash
seized and inventoried was millions of dollars.
Those arrested on narcotics charges receive an addi-
tional notice. By virtue of a consent decree entered in
an earlier federal suit between an arrestee and the City,
Pollard v. Daley, Case No. 87 C 2401, narcotics arrestees
are entitled to a “Pollard Notice,” a Claims Letter
mailed by the City within ninety days of the arrest, in-
forming the arrestee of the procedure to claim their
seized property. Under the terms of the Pollard consent
decree, narcotics arrestees could retrieve their money
by taking the Claims Letter to the ERPS between 8 a.m.
and 4 p.m., Monday through Friday. The Pollard notice
was mailed to narcotics arrestees at the address listed
on the inventory receipt, which narcotics arrestees also
received. Non-narcotics arrestees received only the in-
ventory receipt we have described.
For both narcotics and non-narcotics arrests, the inven-
tory receipt lists three possible dispositions for seized
funds: (1) “hold for investigation and/or evidence,” in
which case the name and star number of the investigating
officer are listed; (2) “property owner notified . . . to
pick up property within 30 days or property will be
disposed of”; or (3) “to be disposed of by custodian (not
to be returned).” For both Gates and Nelson, the officers
No. 08-1455 13

completing the form checked the “hold for investiga-
tion and/or evidence” box, even though the money
taken from them was soon deposited into bank accounts
(the City has one account for narcotics arrests and
another for non-narcotics arrests) where it was co-mingled
with other funds and thus lost any forensic value as
evidence. Moreover, in each case, the arresting officers
engaged in no further investigation related to the
money seized.
The City acknowledges that when the “hold for investi-
gation” box is checked in non-narcotics cases, the money
seized will not be made immediately available to the
arrestee even if the arrestee follows the instructions
(such as they are) in the Notice. However, nothing on
the inventory receipt notifies arrestees in this category
of this fact, and the Notice gives the arrestee no clue as
to what additional steps he must take in order to
reclaim his property. According to the City, an arrestee
in the non-narcotics category may retrieve seized funds
in one of two ways. He may present to the ERPS either
a criminal court order stating that the funds may be
released (a “Section 108 Order”) or a completed Property
Release Order (CPD-34.554), which is known in the
police department as a “Form 54.” To obtain a com-
pleted Form 54, an arrestee must return to the district
of arrest and present the inventory receipt to the
desk sergeant, who, in turn, will attempt to connect the
arrestee with the arresting officer. Only the arresting
officer can certify on a Form 54 that the property is
no longer needed for investigation or evidence. Both
plaintiffs were told they needed a signed Form 54 and
14 No. 08-1455

both tried repeatedly to contact their arresting officers
and were unable to do so. A Section 108 order may be
issued by the judge presiding over the arrestees’ criminal
case. The City presumes the arrestee must request
the order by filing a motion in the criminal case, char-
acterizing the request as a de minimis burden. The City
does not describe how an arrestee may obtain a Sec-
tion 108 order when no criminal charges are filed or
when the charges are quickly dropped.
For narcotics arrests, the process is more complicated.
As we noted, narcotics arrestees receive both an inven-
tory receipt and, in theory, a Pollard notice. The Asset
Forfeiture Unit (“Unit”) of the Police Department mails
the latter to the address listed for the arrestee on the
inventory receipt, even though many arrestees will
surely not be home when the Pollard notice arrives
because a predictable percentage of them will not
be released on bail and instead will be detained in jail
pending trial. The Unit mails Pollard notices only when
the amount seized is less than $1000, the City has
declined to seek forfeiture (and the City automatically
declines to seek forfeiture when the amount is less than
$130), and the money is available to be returned to the
arrestee. As with non-narcotics arrestees, when the
“hold for investigation box” is checked, the money will
not be returned immediately to the arrestee even if he
follows the instructions in the Notice. According to the
City, narcotics arrestees may reclaim their funds by
presenting to the ERPS proper identification and either
the Pollard notice, a notice from the State’s Attorney’s
Office following settlement of any forfeiture action, or
No. 08-1455 15

an order from the asset forfeiture court stating that
the funds may be released. The plaintiffs asserted that
narcotics arrestees could retrieve their funds only by
presenting proper identification, the Pollard notice and
either an order from the asset forfeiture court or a com-
pleted Form 54. The City concedes it will not honor a
Section 108 order in a narcotics case in the absence of
a Pollard notice, a letter from the state’s attorney or an
order from an asset forfeiture court. On summary judg-
ment, we accept the version of the facts supplied by
the party opposing judgment, so we will assume that
narcotics arrestees were required to present the Pollard
notice and an additional document in order to claim
their money. The plain language on the face of the
Notice supports this claim; it declares without qualifica-
tion that Form 54 is “required.”
We turn, then, to whether the notice given to the plain-
tiffs was adequate to satisfy due process concerns. Both
plaintiffs contend that the notice given on the inventory
receipt is misleading and therefore inadequate. Both
contend that the form lulls the recipient into waiting for
an official notice that never comes instead of describing
the City’s actual procedures. Nelson does not chal-
lenge the contents of the Pollard notice sent to narcotics
arrestees but protests that the City failed to make rea-
sonable efforts to deliver the Pollard notice to affected
arrestees. Nelson, a narcotics arrestee, did not receive
the Pollard notice due to him and therefore had only the
Notice on the inventory receipt to guide him. We will
therefore begin with the notice given on the inventory
receipt, which was given to all arrestees from whom
money was seized.
16 No. 08-1455

1.
The City contends that the Notice on the inventory
receipt is adequate under City of West Covina v. Perkins,
525 U.S. 234 (1999). In West Covina, the Court considered
“whether the Constitution requires a State or its local
entities to give detailed and specific instructions or
advice to owners who seek return of property lawfully
seized but no longer needed for police investigation or
criminal prosecution.” 525 U.S. at 236. The property
involved was seized from a home during execution of a
valid search warrant. The police officers executing the
warrant seized photographs, guns, ammunition and
cash. They left the home’s occupants a form titled,
“Search Warrant: Notice of Service” (hereafter “Warrant
Notice”), along with an itemized list of the property
seized. 525 U.S. at 236. In its entirety, the Warrant Notice
read:
TO WHOM IT MAY CONCERN:
1. THESE PREMISES HAVE BEEN SEARCHED BY
PEACE OFFICERS OF THE (name of searching
agency) West Covina Police DEPARTMENT PURSUANT
TO A SEARCH WARRANT ISSUED ON (date) 5-20-93,
BY THE HONORABLE (name of magistrate) Dan
Oki, JUDGE OF THE SUPERIOR/MUNICIPAL COURT,
Citrus JUDICIAL DISTRICT.
2. THE SEARCH WAS CONDUCTED ON (date)
5-21-93. A LIST OF THE PROPERTY SEIZED PURSU-
ANT TO THE SEARCH WARRANT IS ATTACHED.
3. IF YOU WISH FURTHER INFORMATION, YOU
MAY CONTACT:
No. 08-1455 17

(name of investigator) Det. Ferrari or Det. Melnyk
AT [telephone number].
LT. SCHIMANSKI [telephone number].
525 U.S. at 236-37. Although the officers did not leave
the warrant number, that information was available in
a public index. Shortly after the search, Perkins, the
property owner, called one of the detectives listed on
the Warrant Notice seeking the return of the seized
items. The detective told him that he would need to
obtain a court order authorizing the return of the prop-
erty. 525 U.S. at 237. Perkins then went to the court-
house and attempted to see the judge who issued the
warrant. When he learned that the judge was on vacation,
he tried to ask another judge to release his property but
was told the court had nothing under Perkins’ name.
Perkins then filed suit against West Covina and the
officers who seized his property, alleging violations of
the Fourth Amendment. The district court granted sum-
mary judgment to West Covina and its officers but
invited supplemental briefing on whether the available
remedies for the return of seized property were ade-
quate to satisfy due process. West Covina, 525 U.S. at 238.
The district court subsequently found that the remedies
provided by California law for the return of seized prop-
erty satisfied due process. The court of appeals reversed.
Although the appellate court agreed that state law pro-
vided adequate procedures for the return of the property,
the court found that West Covina was required to give
property owners notice of state procedures for the
return of property and also the information needed to
18 No. 08-1455

invoke those procedures, including the warrant number.
525 U.S. at 238-39. The court of appeals detailed the
information that should have been provided to the prop-
erty owner, including: the fact of and date of the search,
the agency conducting the search, the date of the war-
rant, the issuing judge, the court where that judge
served, persons to be contacted for further information,
the procedure for contesting the seizure or retention of
property taken, along with any information needed to
initiate that procedure, and notice that the owner must
file a written motion or request to the court stating why
the property should be returned. 525 U.S. at 239.
The Supreme Court rejected this expansive require-
ment. Perkins acknowledged receipt of a notice that his
property had been seized and an inventory of that prop-
erty. Unlike the plaintiffs here, Perkins raised no inde-
pendent challenge to the adequacy of state law remedies
for the return of his property. Rather, Perkins con-
tended that West Covina deprived him of due process
by failing to provide him notice of the available state
law remedies and the factual information needed to
invoke them. The Court held that “[w]hen the police
seize property for a criminal investigation, however, due
process does not require them to provide the owner
with notice of state-law remedies.” West Covina, 525 U.S.
at 240. The primary purpose of the notice required by
the Due Process Clause, the Court noted, is to ensure the
opportunity for a meaningful hearing. Therefore, due
process requires officers seizing property to “take rea-
sonable steps to give notice that the property has been
taken so the owner can pursue available remedies for
its return.” 525 U.S. at 240.
No. 08-1455 19

No similar rationale justifies requiring individualized
notice of state-law remedies which, like those at
issue here, are established by published, generally
available state statutes and case law. Once the prop-
erty owner is informed that his property has been
seized, he can turn to these public sources to learn
about the remedial procedures available to him. The
City need not take other steps to inform him of
his options.
525 U.S. at 241.
The Court found that its holding in Memphis Light, Gas &
Water Division v. Craft, 436 U.S. 1 (1978), was not to the
contrary. In Memphis Light, the Court held that when
a public utility wishes to terminate service for non-pay-
ment, the utility must provide the customer with an
opportunity to discuss any billing dispute with a
person who has authority to resolve the dispute before
terminating the service. 436 U.S. at 16-17. Because the
internal administrative procedures for resolving billing
disputes were not described in any publicly available
document, the Court also held that due process re-
quired the utility to inform the customer of the avail-
ability and general contours of those procedures. 436
U.S. at 13-15. In West Covina, the Court read Memphis
Light to require notice of the procedures for protecting
one’s property interest “when those procedures are
arcane and are not set forth in documents accessible to
the public.” West Covina, 525 U.S. at 242. Memphis Light
did not, however, support a general rule that notice of
remedies and procedures is required. When state law
20 No. 08-1455

remedies are established by published, generally available
state statutes and case law, no individualized notice
of those procedures is required. West Covina, 525 U.S.
at 241. The Appendix to the Opinion of the Court in
West Covina contains a list of federal and state laws gov-
erning the execution of search warrants and the return
of seized property. 525 U.S. at 244-45. Among the laws
listed is 725 ILCS 5/108-10, which is one of the stat-
utes listed in the Notice issued to both Nelson and
Gates when their property was seized. Section 108-10
addresses the return of property taken pursuant to a
warrant. Section 108-2, also listed on the inventory
receipt, relates to the custody and disposition of things
seized without a warrant, the situation in the instant
case. Unlike West Covina, the money seized from Gates
and Nelson was taken without a warrant during an
inventory search incident to arrest. As we note below,
the City relies on Section 108-1 for authority to search
for and seize at the time of arrest the proceeds of a crime,
articles used in the crime and similar items. We will
assume for the purposes of our discussion below that
West Covina is not distinguishable simply because the
money was seized without a warrant. We reserve that
decision for a case where it is presented and argued.
Under West Covina, the City was not obliged to give
Gates and Nelson individualized notice of any publicly
available state law remedies for the return of their prop-
erty, and thus had no obligation to direct the arrestees
to Section 108, if Section 108 is in fact an available rem-
edy. The City was obliged by statute to inform the
arrestees of the fact of the seizure and to provide an
No. 08-1455 21

inventory of the items seized. That they did. Although
West Covina controls as to the procedures set forth in
state statutes, it does not control as to the City’s addi-
tional difficult-to-access police department rules. In
addition to the Section 108 order, the City appears to
require additional documents not prescribed by any
state statute. Because the City’s additional procedures
and requirements are not readily accessible to the public,
Memphis Light rather than West Covina controls, and the
City must provide notice of the procedures.
In addition to obtaining a Section 108 order, the City
required arrestees to take steps in addition to or in lieu
of that state law remedy if they hoped to get their
money back. The City concedes it would not honor a
Section 108 order in the case of a narcotics arrest and
in certain non-narcotics cases, such as gambling and
prostitution, that might also involve forfeiture. Ac-
cording to the City, non-narcotics arrestees required the
inventory receipt, proper identification and either a
Form 54 or a Section 108 order in order to retrieve their
money. Narcotics arrestees were required to produce
the inventory receipt, proper identification, a Form 54 or
Section 108 order, and either a Pollard notice, an order
from an asset forfeiture court or a letter from the state’s
attorney’s office. Both plaintiffs were told they needed
the Form 54 and the desk officers did not mention
Section 108 when the plaintiffs tried to reclaim their
property. Although the state statutes make no mention
of “CPD-34.554,” the Form 54 as it is called in the
police department, the first line of the Notice states,
“Property Release Order (CPD-34.554) Required.” The
Form 54 is “[r]equired” according to the Notice, even
22 No. 08-1455

though in certain instances it simply would not be
signed by the arresting officer.8
The procedures the police department actually em-
ployed are not available in documents that are published
and generally available. The procedures described in
the plaintiffs’ testimony (which we are obliged to credit
at this stage of the proceedings) are revealed nowhere
except possibly in the Police Department’s General
Orders. The district court found that the General Orders
were published and generally available because they
are apparently accessible during monthly police board
meetings. Gates II, 507 F.Supp.2d at 916-17. General
Orders, which are written as guides for police officers,
are not “published and generally available” in the same
sense that publicly enacted laws are published and gen-
erally available. Rather, they are “arcane and are not set
forth in documents accessible to the public.” West Covina,
525 U.S. at 242. An arrestee would have to know that
the General Orders exist, know that they contain infor-

8
One of the Rule 30(b)(6) witnesses for the City pointed out that
there is a box to the left of the line requiring the Form 54.
That witness testified that the Form 54 is required only when
that box is checked. The photocopies of the Notice are faint
and the box is not visible on this court’s copies of the docu-
ment. Moreover, the Notice is arranged in such a way that a
person may not realize that the two paragraphs following
the Form 54 statement do not apply unless that box is checked.
Finally, the record is unclear regarding whether the box was
checked on either plaintiff’s inventory form, but both plain-
tiffs were told that Form 54 releases were required to re-
trieve their money.
No. 08-1455 23

mation regarding the recovery of money seized during
arrest, know where and when to find them, and then
be able to discern from documents intended to guide
police officers what they as arrestees should do to
recover their money.9 This is clearly distinguishable from
the published, generally available statutes, and thus
West Covina does not control the outcome. Because the
procedures were arcane and not generally available,
under Memphis Light, the City was thus obliged to tell
arrestees how to get their money back.
The Notice given to arrestees with the inventory
receipt does not adequately inform arrestees of the pro-

9
Although it is not part of the record, we found a recent
newspaper article regarding the General Orders enlightening.
Apparently, the General Orders are due for a major overhaul
meant to reduce the volume, remove obsolete rules and add
clarity. See “First Time in 40 Years: Cops’ Rule Book Gets a
Makeover: ‘It’s a mess.’ 16-inch stack to be thinned down.”
http://www.suntimes.com/news/metro/2100601,CST-NWS-cop
rules14.article (last visited September 22, 2010). “It’s a mess,” is
a quote from the Department’s director of police research and
development division. A sergeant who uses the General
Orders every day stated, “You read these general orders and
your eyes start bleeding. They’re so boring.” A police and
civilian team aims to reduce the size of the 16-inch stack of
orders by two-thirds, according to the article. The banality of
the General Orders and the ennui they induce in readers
are not at issue here, of course. The problem with using the
General Orders as notice of the procedures for reclaiming
seized funds is that they are not generally available to the
public in the same sense as published statutes. They are more
like the arcane rules referenced in Memphis Light.
24 No. 08-1455

cedures to retrieve their money and thus does not
comport with due process. After our review of the
record, the City’s procedures for arrestees to reclaim
their cash remain unclear. When the plaintiffs followed
the directive to return to the police station for forms
and instructions to reclaim their property, they were
told they needed the Form 54 but the desk officers
did not mention Section 108 orders, orders from asset
forfeiture courts or letters from the state’s attorney’s
office. The City’s Notice did not inform arrestees of the
internal police department procedures which appear to
have actually governed the procedure for the return
of property seized during an arrest. Nothing on the
Notice informed non-narcotics arrestees that they
would require the inventory receipt, proper identification
and either a Form 54 or a Section 108 order. Nothing on
the Notice informs narcotics arrestees that they will
require the inventory receipt, proper identification, a
Form 54 or Section 108 order, and either a Pollard
notice, an order from an asset forfeiture court or a letter
from the state’s attorney’s office.
Nothing on the Notice tells arrestees that if the “hold
for investigation and/or evidence” box is checked, the
subsequent instructions to return to the police station
with the inventory form will be inefficacious, at least
until the criminal case has concluded and the time for
forfeiture has expired. Under those circumstances, fol-
lowing the instructions on the receipt by seeking the
signature of an arresting officer on a Form 54 Property
Release Order is a futile pursuit because the property
will not be available for immediate release. The Notice
No. 08-1455 25

also indicates that “official notification” that the property
is available for release will be forthcoming even though
the City never issues such a notice, even in cases where
it determines that the property is not subject to forfeiture
and is not necessary for investigation or evidentiary
purposes. Although the City was not obliged to inform
arrestees about publicly published state law remedies,
the City may not mislead arrestees about the necessary
procedures for the return of their money or lull them
into passively waiting for official notification. On this
record, it appears the City’s instructions were a model
of misdirection. Although published state statutes
qualify as being readily available to the public, documents
that are available at a monthly Police Board Meeting,
although technically available to the public in a limited
way, cannot satisfy due process notice requirements.
Summary judgment in favor of the City on the issue
of notice sufficient to satisfy due process was premature
given that the Notice provided misleading and incom-
plete information.

2.
For narcotics arrestees, there is an additional due
process notice issue. According to Nelson, the Pollard
notice is mailed to the address listed on the inventory
receipt. This address is provided by the arrestee at the
time of the arrest. Nelson challenges whether mailing
this notice to the address given on the inventory receipt
satisfies the requirements of due process. He contends
that a predictable percentage of arrestees will not be
26 No. 08-1455

able to make bail and will be in jail at the time the
Pollard notice is mailed to their last home address. The
City is well aware that some arrestees will not be found
at home because the City itself delivers the arrestees
to the jail. Nelson argues that, before sending the
Pollard notice, the City should take the additional step
of checking the website of the Sheriff’s Department to
determine if the arrestee is in jail, and if so, deliver the
Pollard notice to the arrestee in jail. Nelson also argues
that, if the City uses the address listed on the inventory
receipt in the first instance, the City is obliged to take
the additional step of checking the Sheriff’s website to
determine if the arrestee is at the jail and forward the
notice there if the first Pollard notice is returned to the
City as undelivered.
Due process requires, at a minimum, that “deprivation
of life, liberty or property by adjudication be preceded
by notice and opportunity for hearing appropriate to the
nature of the case.” Mullane v. Central Hanover Bank &
Trust Co., 339 U.S. 306, 313 (1950). That notice must be
“reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action
and afford them an opportunity to present their objec-
tions.” Mullane, 339 U.S. at 314. The question here is
whether notice initially sent to the home address
of arrestees, a number of whom predictably remain in
custody, is reasonably calculated to reach them. There is
a risk (which we cannot quantify on this record) that
incarcerated persons will never see notices that were
sent to their homes, in some cases because the notice
will be returned as undeliverable and in other cases
No. 08-1455 27

because other persons living in the home will not
forward the notice to an incarcerated arrestee. A related
question is whether mailings returned by the post office
require a check of the Sheriff’s website and a possible
second mailing under the Mullane standard. The plain-
tiffs point out that there is some agreement between
the parties on the basic principles at play. The plain-
tiffs agree that the notice need not actually reach its
intended target so long as it is reasonably calculated to
do so. Dusenbery v. United States, 534 U.S. 161 (2002)
(actual notice is not required so long as the chosen
method of giving notice is reasonably certain to inform
those affected); Ho v. Donovan, 569 F.3d 677, 680 (7th Cir.
2009) (same). The defendants agree that a notice may not
be sent to the arrestee’s home if the City affirmatively
knows the arrestee is in jail because such a mailing
is not reasonably calculated to reach the intended target.
Robinson v. Hanrahan, 409 U.S. 38, 39 (1972) (where the
State mails a vehicle forfeiture notice to the address
where the vehicle is registered even though the State
knows the target of the mailing was not at that address
and also knows he will not be able to get to that address
because he is confined in jail, that notice was not rea-
sonably calculated to apprise the vehicle owner of the
pendency of the forfeiture proceedings). Nelson notes
that, in narcotics cases where criminal proceedings
have been initiated against the arrestee whose property
has been seized, the City is aware of a significant possi-
bility that the arrestee is in state custody and will not be
at home to receive the Pollard notice. Nelson acknowl-
edges that not all arrestees are in jail at the time the
28 No. 08-1455

Pollard notice is mailed, and thus concedes that the
City cannot know the arrestee’s whereabouts without
inquiry, but contends the City can easily check the
Sheriff’s website to determine if the arrestee is incar-
cerated before sending the notice. At the very least,
Nelson asserts, the City should be required to check the
Sheriff’s website if the first attempted mailing is re-
turned as undelivered. If the arrestee is in jail, the City
should be required to mail the Pollard notice to the
jail, Nelson posits.
Mullane specifies that the means of delivery “employed
must be such as one desirous of actually informing the
absentee might reasonably adopt to accomplish it.” The
purpose of notice under the Due Process Clause is to
apprise interested parties of the pendency of an action
that might deprive them of their property and afford
them an opportunity to present their objections. The
purpose of the Pollard notice is to inform the owner
that forfeiture will not be sought and that the funds are
available to be returned to the owner. But if the owner
fails to reclaim property within a certain number of days
after receiving notice of its release, the inventory re-
ceipt Notice warns that the “property will be legally dis-
posed of according to the direction of law.” The Pollard
notice is not the only notice relating to property seizure
received by narcotics arrestees. Narcotics arrestees also
receive the inventory receipt, which contains its own
Notice regarding how to proceed when property has
been seized at the time of arrest. That Notice is handed
to the arrestee at the time of the arrest, but as we
noted above, that Notice is not adequate on this record
No. 08-1455 29

to apprise narcotics arrestees of the procedures neces-
sary to reclaim their money. Moreover, the Pollard notice
is more than just a notice; it is a document required to
retrieve the property that has been seized. The City
has conceded that it will not release the property in a
narcotics case unless the arrestee presents the Pollard
notice, an order from an asset forfeiture court or a letter
from the state’s attorney’s office. In a case where the
City decides not to seek forfeiture, there will be no
order from an asset forfeiture court and no letter from
the state’s attorney’s office settling the forfeiture. The
Pollard notice then becomes the most important vehicle,
if not the only vehicle, for the arrestee to reclaim
his money.
The record does not tell us the cost to the City of
checking the Sheriff’s website before mailing the
Pollard notice, or the cost of checking it only after a
notice has been returned as undelivered. It is the City’s
burden to demonstrate that the notice provided is ade-
quate for the purposes of due process. Whiting v. United
States, 231 F.3d 70, 77 (1st Cir. 2000) (the government
must show, if the issue is contested, that the notice
was mailed to the prison in which the claimant was in
fact being held). Generally, written notice mailed to the
claimant’s residence satisfies due process even if the
notice is not actually received. Krecioch v. United States,
221 F.3d 976, 980 (7th Cir. 2000). At the same time, due
process is not satisfied if the notifying party knew or
had reason to know that notice would be ineffective.
Garcia v. Meza, 235 F.3d 287, 290 (7th Cir. 2000); Krecioch,
221 F.3d at 980. Given that the City knows that some
30 No. 08-1455

arrestees will be in jail when the Pollard notice is mailed,
we are reluctant to find as a matter of law that
notice mailed to the home of the arrestee satisfies the
Mullane standard, especially in cases where the notice
is returned as undelivered. At that point, the City’s
general knowledge that some arrestees will be in jail
becomes more specific: this arrestee is quite possibly in
jail. 10 Kreicioch, 221 F.3d at 980-81 (the government
violates due process when it purposely mails notice
of forfeiture to the claimant’s residence knowing that
the claimant is incarcerated or in federal custody). “A rea-
sonable person presented with a letter that has been
returned to sender will ordinarily attempt to resend it
if it is practicable to do so.” Small v. United States, 136
F.3d 1334, 1337 (D.C. Cir. 1998). A person “desirous
of actually informing” the arrestee would likely take
that second step and check the Sheriff’s website. Small,
136 F.3d at 1337 (when the government knows, or can
easily ascertain, where a person may be found, it must
direct its notice there, and not to some other address
where the designee formerly resided). Although the
City complains that the Sheriff’s website contains a dis-

10
There are a number of reasons, of course, that a notice
might be returned as undeliverable. The arrestee may have
moved, or may have given a false address in the first place.
The question here is whether the notice is reasonably cal-
culated to reach the target. When the sender of the notice
has itself delivered the intended recipient to jail, jail is cer-
tainly one of the likeliest places to find that target if mail sent
to the home address is returned by the post office.
No. 08-1455 31

claimer regarding the accuracy of the data on the
site, the use of that site to locate the arrestee would
likely satisfy the City’s duty to reasonably attempt
delivery given the City’s awareness that some per-
centage of arrestees will not be home to receive the
notices but will be in custody. As even the plaintiffs
concede, actual notice is not necessary if the City takes
steps that are “reasonably calculated” to provide the
notice. On this record, we cannot say that mailing only
to the address given at the time of arrest is adequate
for due process purposes when the City has available
a seemingly low-cost option for locating arrestees
likely to be in jail. See Krecioch, 221 F.3d at 980 (when a
claimant is incarcerated or in government custody, the
ease of learning the claimant’s location makes it in
most cases unreasonable for the forfeiting agency to
fail to ascertain the location of one it knows to be in
government custody). “Of course, if sending the letter
again would require an ‘impracticable and extended
search’ for its addressee, Mullane, 339 U.S. at 317, 70
S.Ct. at 659, then a reasonable person would not try again,
and due process does not require another attempt.”
Small, 136 F. 3d at 1337. See also Lobzun, 422 F.3d at 507
(although there is no per se rule imposing an affirmative
duty on the government to seek out claimants in each
case where the initial notice is returned undelivered, the
court must decide on a case-specific basis whether the
Mullane standard is met, considering all of the circum-
stances of each case to determine whether the
notice provided is reasonably calculated to apprise the
claimant of pending proceedings). Our court has de-
32 No. 08-1455

clined to adopt a per se rule that examines notice only
at the time it was sent and ignores subsequent events.
Garcia, 235 F.3d at 291. At the same time,
we also decline to impose an affirmative duty upon
the government to seek out claimants in each case
where its initial notice is returned undelivered or
to require actual notice in every case. Instead, we
believe the correct approach is a fact-specific analysis
under the due process standard set forth by the Su-
preme Court in Mullane, which requires us to
consider all the circumstances of each case to deter-
mine whether the notice provided is reasonably
calculated to apprise the claimant of the impending
proceeding.
Garcia, 235 F.3d at 291. The plaintiffs claim that forty
percent of Pollard notices mailed are returned to the
police department undelivered. The City does not wish
to bear the expense of the additional search of the
Sheriff’s website and a possible second mailing because
the amounts at issue are so small. But the City expects
claimants to repeatedly return to the police station for
instructions and for the elusive hunt for the arresting
officer’s signature on the Form 54, in order to reclaim
those same small amounts. And the Pollard letter is not
simply notice but also the means by which arrestees
may reclaim their money. The predictable result is that
millions of dollars remain unclaimed in the City’s coffers
each year. We cannot conclude on this record that
arrestees are willingly abandoning millions of dollars;
it is just as likely that they do not claim their money
No. 08-1455 33

because they do not know how or because they have not
received a Pollard notice or because the City has made
the process obtuse and unreasonably difficult. It is more
likely that arrestees do not know how to retrieve their
money because the City’s notice is misleading and, in a
certain class of cases, is not reasonably calculated to
reach its target. The district court was premature in
holding that the inventory receipt Notice was adequate,
and in finding that no more than the initial Pollard
mailing to the address listed on the inventory receipt
was required for narcotics arrestees. The court should
also have considered the City’s knowledge that a pre-
dictable number of arrestees would not be home, and
should have weighed the practicability of checking the
Sheriff’s website and making a second mailing.

B.
Before we proceed to the merits of the inadequate
procedures issue, we must address the City’s contention
that the plaintiffs waived any claim that they were
entitled to prompt post-deprivation hearings by not
raising this issue in the district court. The plaintiffs
made clear several times in the district court that their
due process claim encompassed both a lack of notice
about the procedures for the return of their property
and the inadequacy of the procedures themselves. In
part, the plaintiffs argued that the City failed to estab-
lish its right to continue to detain their property through
a post-deprivation hearing and yet also would not
34 No. 08-1455

return their property. See, e.g., R. 17, at 2 (“Fourth, Defen-
dants violate the Fourth Amendment by seizing and
detaining property without securing a post-seizure
finding of probable cause to detain it.”); Id. at 6 (“[I]t
is important to note the dual aspects of Plaintiffs’ proce-
dural due process claim. The first . . . is a constitutionally
defective notice. The second aspect of the procedural
due process claim relates to Defendants’ failure to offer
a constitutionally permissible administrative remedy.”);
R. 317-1, at 10-11 (noting the dual aspects of the due
process claim, and also noting that the “City neverthe-
less retains the inventoried cash, fails to send notice
the property is available for pick up, and never seeks
judicial approval of its continued detention of the prop-
erty.”). We understand the plaintiffs’ argument to be
that they were entitled to the immediate return of their
money at the conclusion of the criminal cases against
them and after the time for forfeiture had passed be-
cause the City failed to establish any right to continue
holding the money. The City failed to establish a right
to detain the money in part because there was no
prompt post-deprivation hearing. The plaintiffs have not
sought a prompt post-deprivation hearing as a remedy
but rather argued that they were entitled to get their
money back in the absence of any such hearing. The
City does not seem to deny that it had no claim on the
plaintiffs’ property after the conclusion of the criminal
cases and after the time for seeking forfeiture expired,
and in fact contends that it never “seized” the plaintiffs’
property at all but merely “recovered” it, a contention
that is consistent with the plaintiffs’ claim. The plain-
No. 08-1455 35

tiffs’ argument regarding a prompt post-deprivation
hearing, although not always clearly expressed, is simply
part of their larger argument that the procedures for
the return of their money were inadequate, an issue
which they clearly preserved. We will therefore proceed
to the merits of the issue.
We have already concluded that notice of the proce-
dures for reclaiming seized money may be inadequate
and that the district court was premature in granting
judgment in favor of the City on that point. We now
consider whether the process itself was adequate to
satisfy the Constitution. The record is replete with
factual disputes about what the City requires of arrestees
seeking return of their money and whether the City’s
stated procedures and remedies are actually available
to arrestees. Gates and Nelson contend that the City’s
procedure was illusory and that the signed Form 54
was essentially unobtainable. They complain that the
City has improperly inverted the burden of proof in
requiring arrestees to obtain orders proving their entitle-
ment to their money. If the City wishes to retain the
money following the conclusion of criminal proceedings,
Gates and Nelson contend, then the City must seek
judicial authorization allowing the City to do so. The
City cites Sections 108-2, 108-10 and 108-11 as providing
an available state statutory process and argues that the
burden on arrestees of requesting a criminal court order
releasing inventoried property is de minimis. The City
also cites Section 108-1 as authority for seizing the
money in the first place.
36 No. 08-1455

Section 108-1 provides in relevant part:
Search without warrant. (1) When a lawful arrest is
effected a peace officer may reasonably search the
person arrested and the area within such person’s
immediate presence for the purpose of:
(a) Protecting the officer from attack; or
(b) Preventing the person from escaping; or
(c) Discovering the fruits of the crime; or
(d) Discovering any instruments, articles, or things
which may have been used in the commission of,
or which may constitute evidence of, an offense.
725 ILCS 5/108-1. The City argues that Section 108-1 allows
officers to search arrestees for fruits of the crime, or items
that constitute evidence of the crime or items that were
used in committing the crime. Releasing such property
before the State has decided whether to use it as evi-
dence or the criminal court has released it would contra-
vene these purposes, the City argues. To ensure that
property is not released prematurely, the City reasons
that it may require arrestees to present either a court
order or a Form 54 executed by the arresting officer. The
plaintiffs, however, are not seeking return of their funds
during the pendency of criminal proceedings. The class
consists of arrestees whose criminal cases have con-
cluded and for whom the time for forfeiture has ex-
pired. But the relevance of Section 108-1 as a source
of authority for holding the property is questionable
once the criminal cases are concluded. At that point, the
City is essentially arguing that it was entitled to shift to
No. 08-1455 37

the arrestee the administrative burden of keeping track
of whether the money was still needed in a prosecution.
Recall that Section 108-2 provides what is to be done
when property is seized without a warrant. In that in-
stance:
An inventory of all instruments, articles or things
seized on a search without warrant shall be given to
the person arrested and a copy thereof delivered to
the judge before whom the person arrested is taken,
and thereafter, such instruments, articles or things
shall be handled and disposed of in accordance
with Sections 108-11 and 108-12 of this Code. If the
person arrested is released without a charge being preferred
against him all instruments, articles or things seized, other
than contraband, shall be returned to him upon release.
725 ILCS 5/108-2 (emphasis added). Section 108-10 pro-
vides the procedure when property is taken pursuant to
a warrant:
A return of all instruments, articles or things seized
shall be made without unnecessary delay before the
judge issuing the warrant or before any judge named
in the warrant or before any court of competent juris-
diction. An inventory of any instruments, articles or
things seized shall be filed with the return and
signed under oath by the officer or person executing
the warrant. The judge shall upon request deliver
a copy of the inventory to the person from whom or
from whose premises the instruments, articles or
things were taken and to the applicant for the warrant.
38 No. 08-1455

725 ILCS 5/108-10. In each instance here, the money was
seized without a warrant and so Section 108-2 applies.
Section 108-2, in turn, directs the court to Section 108-11
and 108-12. Section 108-12 addresses the disposal of
obscene material and is not relevant here. Section 108-11
provides:
The court before which the instruments, articles or
things are returned shall enter an order providing
for their custody pending further proceedings.
725 ILCS 5/108-11.
The City envisions that the court will enter an order
in each case involving a seizure of property. The plain-
tiffs do not dispute that a court could, in theory, enter
such an order. But they contend that the statute
does not require a court to do so, that courts generally
are reluctant to take that step, and that in any case, the
City does not accept such an order as sufficient to
secure the release of funds. If money seized is potentially
subject to forfeiture, as it may be in narcotics cases or
certain other cases,1 1 the City admits it will not release
the money even if the arrestee presents a court order
issued under Section 108 (if an arrestee manages to
procure such an order, which Gates and Nelson claim
is difficult to impossible). In that instance, the City addi-
tionally requires an order from an asset forfeiture court
or a Pollard release letter from the Asset Forfeiture Unit

11
The City claims to seek forfeiture in certain cases in-
volving prostitution and gambling in addition to certain nar-
cotics cases.
No. 08-1455 39

or a letter from the state’s attorney’s office indicating
any forfeiture has been settled even when the time
for applying for forfeiture has passed and even when
the City has decided as a matter of policy not to seek
forfeiture in cases involving small amounts of money.
As we noted, the plaintiffs have also testified that the
City also requires a signed Form 54 in possible asset
forfeiture cases as well as in all other cases, a require-
ment stated on the face of the Notice.
Gates and Nelson contend that criminal court judges
routinely refuse to enter Section 108 orders and that
the provision is therefore not an available remedy. The
arguments of both the plaintiffs and the City on this
issue are moving targets, but we see a number of poten-
tial problems with the City’s argument regarding Sec-
tion 108. Although Section 108 might provide a means
for arrestees to reclaim money that the City has held
past the point of any legitimate right to retain it, the
plaintiffs’ real complaint is that the City has a policy
of routinely putting arrestees to the burden of that
remedy in the first place. The plaintiffs’ first point of
contention with the City’s policy is that it requires
arrestees to provide anything other than the inventory
receipt and proper identification to collect their money
at the conclusion of their criminal cases. Once the time
for forfeiture has passed and it is clear the City has no
entitlement to the money, the plaintiffs maintain that
there is no constitutionally permissible reason to require
arrestees to procure a court order to reclaim what is
rightfully theirs. The City nonetheless insists upon the
Section 108 order because it wishes to verify that the
40 No. 08-1455

criminal case is indeed over, that the money is no
longer needed as evidence, and that forfeiture is no
longer an issue. In requiring the order, Gates and Nelson
contend, the City shifts to arrestees the administrative
burden of proving entitlement to their money and retains
the money past any legitimate time frame as a matter
of official policy.
The question with respect to Section 108 is whether
the City or the arrestee should be held to the burden of
seeking a Section 108 order. In cases where the money
is legitimately needed as evidence or might be subject
to forfeiture, the City or the prosecutor can ask the court
to enter a Section 108 order “providing for [its] custody
pending further proceedings.” 725 ILCS 5/108-11. In
cases where the criminal case has concluded and the
time for forfeiture has expired, an arrestee may ask the
court to release the funds. The plaintiffs contend they
should not be put to this task and the City contends it
is a de minimis burden. The plaintiffs also presented
evidence that criminal courts are reluctant to issue
Section 108 orders unless the arrestee can demonstrate
that forfeiture will not be sought, placing arrestees in a
classic Catch-22 because the alleged purpose of re-
quiring the Section 108 order is to demonstrate to the
City that forfeiture is no longer an issue.
In arguing that the City’s procedures requiring a
Section 108 order or a Form 54 do not comport with due
process, the plaintiffs cite to a line of cases from the
Second Circuit involving the procedures for arrestees
to recover their property in the City of New York. See
No. 08-1455 41

McClendon v. Rosetti, 460 F.2d 111 (2d Cir. 1972); Butler
v. Castro, 896 F.2d 698 (2d Cir. 1990); Alexandre v. Cortes,
140 F.3d 406 (2d Cir. 1998). The plaintiffs in McClendon,
like the plaintiffs here, had been arrested and had
property taken from them at the time of their arrests.
Pursuant to a municipal ordinance, that property was
delivered to the Police Property Clerk of New York
(“Property Clerk”) by the arresting officers or by the
Department of Corrections. In each person’s case, crim-
inal proceedings had been terminated either by dismissal
or conviction of a crime unrelated to the property.
The District Attorney had in each instance supplied a
release certifying that the property was no longer
needed as evidence in any case and that the District
Attorney had no objection to its release. Each plaintiff
made a timely demand for the return of his or her
property and each was told that they must file a civil
suit. The parties agreed that the part of the ordinance
giving a judge the authority to direct the return of the
property was not a meaningful remedy because almost
no criminal court judge would order such a return. The
court held that, beyond certain deficiencies of notice,
the ordinance is fatally deficient in other terms of
due process. The burden of proof in any civil action
is expressly put upon the claimant “from whose pos-
session such property or money was taken or
obtained, or any other claimant” to “establish that
he has a lawful title or property right in such
property or money and lawfully obtained possession
thereof and that such property or money was held
and used in a lawful manner.” New York, N.Y. Admin-
42 No. 08-1455

istrative Code § 435-4.0(f) (Supp.1971). As the section
has been construed by the New York courts, the
burden exists even if there is insufficient evidence
for an indictment. It exists even after acquittal or
dismissal. It seems plain enough that absent evi-
dence of unlawful conduct, criminal sanctions may
not be imposed nor property forfeited even though
in the case of property forfeiture the burden of proof
on the government seeking it is only by a preponder-
ance of the evidence.
McClendon, 460 F.2d at 115 (internal citations omitted).
The city thus treated the arrestee as if his property
was contraband or was presumptively subject to for-
feiture. The court noted the defendant’s concession that,
as a matter of practice, when a registered owner of a car
seized in connection with an arrest filled out a form
provided by the Property Clerk, showed proof of owner-
ship and lawful possession, and the District Attorney
had released the car as evidence, “the Property Clerk will
frequently return the automobile if he is satisfied that
the claimant had no knowledge it was used as a means of
or in furtherance of crime.” McClendon, 460 F.2d at 115-16
(emphasis in original). The court characterized this
regular practice as displaying a “substantial degree of
governmental arbitrariness” that “suggests per se a lack
of due process.” 460 F.2d at 115. The court therefore
held the municipal code “unconstitutional as applied to
persons from whose possession money or property,
other than contraband, has been taken or obtained,
though such money or property was not related to any
criminal proceeding, or, if it was so related, such crim-
No. 08-1455 43

inal proceedings had been terminated, or if the money
or property had been needed as evidence in a criminal
proceeding, it was no longer needed for that purpose,
as violative of the due process clauses of the fifth and
fourteenth amendments.” 460 F.3d at 116.
The case was remanded to the district court, which in
turn issued a remedial order specifying a procedure
for release of property taken at arrest. Among other
things, the district court required the City of New York
to provide each person from whom property was
taken at arrest a voucher which contained instructions
(printed on the back of the voucher) on how to reclaim
his or her property. According to the court’s order, the
arrestee could reclaim property taken at the time of
arrest by presenting the voucher, proper identification,
and a district attorney’s release stating that the prop-
erty was not needed as evidence, to the Property Clerk.
Upon demand, the Property Clerk was then obliged to
release the money or institute forfeiture or other judicial
proceedings if it intended to keep the property further.
See Butler, 896 F.2d at 701-02 (explaining the procedure
set forth by the district court after remand in McClendon).
The City of New York, however, failed to update its
municipal code to reflect the court-ordered procedures
but instead left in place the procedures which had
been stricken down in McClendon. The plaintiff in Butler
claimed not to have received the voucher containing
the instructions for reclaiming his property. Because the
City of New York had not yet modified the municipal
code to reflect the McClendon procedures, and because
the police department did not give Butler a voucher
44 No. 08-1455

informing him of the prevailing procedures, the court
found that Butler could maintain a due process claim
based on lack of notice of the procedures to reclaim
his property. 896 F.2d at 703-04.
In Alexandre, the third case in the series, the plaintiff
was arrested, charged with murder and convicted. At the
time of his arrest, police officers seized the car he was
driving and jewelry in his possession. None of the
property taken was related to the crime. Alexandre, 140
F.3d at 407. The police ultimately returned the car to the
title holder to whom Alexandre owed some remaining
payments. The jewelry was misplaced, lost or stolen.
Alexandre raised two arguments. First, because the loss
of his property resulted from established City proce-
dures and not from a random and unauthorized act, the
existence of post-deprivation remedies under state law
did not foreclose a due process claim. Second, he con-
tended that, even if established City procedures allowed
claimants to recover property in a way that satisfied
due process, the description of those procedures in the
newly updated municipal code was misleading and
did not provide constitutionally adequate notice. 140
F.3d at 409. In expounding on McClendon, the Alexandre
court explained that the earlier municipal code was
unconstitutional in two respects. First, prisoners whose
property was being held by the Property Clerk did not
receive meaningful notice of the procedures for re-
covering it. And second, the municipal code “improperly
placed the burden of proof on the prisoner to ‘establish
that he ha[d] a lawful title or property right in such
property or money and lawfully obtained possession
No. 08-1455 45

thereof and that such property or money was held and
used in a lawful manner.’ ” Alexandre, 140 F.3d at 409
(quoting the now-obsolete New York municipal code).
“This arrangement impermissibly permitted the imposi-
tion of criminal sanctions in the absence of unlawful
conduct.” 140 F.3d at 409 (citing McClendon, 460 F.2d
at 114-16).
Analyzing Alexandre’s due process claims, the court
considered the defendant’s claim that there could be
no due process claim for the release of the car to the title
holder because post-deprivation remedies available
under state law were adequate to compensate Alexandre
for any injury he suffered as a result of the release of
the car to the vendor that held title pending final pay-
ment. Citing the Supreme Court’s reasoning in Parratt
v. Taylor, 451 U.S. 527 (1981), overruled in part on other
grounds, Daniels v. Williams, 474 U.S. 327 (1986), and
Hudson v. Palmer, 468 U.S. 517 (1984), the court noted that
pre-deprivation procedures are impracticable in cases
of negligent and even intentional deprivations of prop-
erty when those deprivations occur through random
and unauthorized conduct of state employees; a state
cannot predict, after all, when that conduct will occur.
140 F.3d at 411. In those cases, adequate post-deprivation
remedies will suffice. But an adequate post-deprivation
remedy is a defense to a Section 1983 action only where
the deprivation is random and unauthorized. Alexandre,
140 F.3d at 411; Butler, 896 F.2d at 700. “By contrast,
‘the existence of independent state relief does not defeat
a Section 1983 claim where the deprivation complained
of results from the operation of established state proce-
46 No. 08-1455

dures.’ ” Butler, 896 F.2d at 700. Because the release of
Alexandre’s car to the vendor holding the title was
effected in accordance with the City’s established proce-
dures, the court held that the Section 1983 action was not
barred by Parratt and Hudson. According to the court,
the system established by the City allowed the Property
Clerk to release a vehicle without notifying the arrestee
who held the voucher for it, and created no procedure
for an arrestee to challenge the City’s action of handing
the vehicle over to the titleholder. Such a system did not
comport with due process. Alexandre, 140 F.3d at 413.
As for the jewelry, the court first noted that twenty-six
years had passed since McClendon had been decided
and the City of New York had still failed to amend its
municipal code to eliminate the unconstitutional provi-
sions struck down in McClendon. Unlike Butler, though,
Alexandre received a property voucher for his jewelry.
Copies of the voucher in the record, however, showed
only the front of the voucher and it was therefore
unclear whether Alexandre had been provided with the
instructions for reclaiming property that normally ap-
peared on the back of the voucher. The City had
amended the municipal code to include at least part of the
court-ordered procedures for the release of property
taken at arrest. The court remanded the claim relating
to the jewelry so that the trial court could consider in
the first instance whether the amended municipal code
provided adequate notice of the procedures and whether
the procedures themselves, as set forth in the amended
code, were adequate to satisfy the requirements of the
due process clause. Alexandre, 140 F.3d at 414.
No. 08-1455 47

The Second Circuit cases help clarify an issue lurking
in this case: the difference between regular procedures
for the return of property and remedies to pursue if
property is not returned according to those regular pro-
cedures. The parties argue over whether Section 108 is a
“remedy” available to arrestees seeking return of their
property. Arrestees should require a post-deprivation
“remedy,” however, only when random and unauthorized
conduct by City officials results in a deprivation of
their property. The appropriate question in the first
instance is whether the City, having taken the property
of arrestees without a warrant and having retained it
until the conclusion of criminal proceedings, has a proce-
dure for the return of that property that comports with
due process. If the City is saying that Section 108 pro-
vides the procedure, and the City reads Section 108 to
require the arrestees to seek a court order releasing their
property (an order the City admittedly will not honor
in certain cases), then those procedures may not com-
port with due process. As in McClendon, that procedure
improperly places on the arrestee the burden of proof to
establish that he had a lawful right to the property.
McClendon characterized such a burden as imposing a
criminal sanction in the absence of criminal conduct.
Even if arrestees could legitimately be required to
seek Section 108 orders as a matter of official policy, the
City does not follow the letter of Section 108. Recall
that the charges against Nelson were dropped. Under
Section 108, “[i]f the person arrested is released without a
charge being preferred against him all instruments,
articles or things seized, other than contraband, shall be
48 No. 08-1455

returned to him upon release.” The legal meaning of
“preferred” is of course different from the colloquial
use of the term. To prefer charges means “to bring be-
fore; to prosecute; to proceed with.” Black’s Law Dictio-
nary, Sixth Edition (1990). Under Section 108, when the
charges against Nelson were dismissed, his property
(excluding any contraband) should have been returned
to him without further ado. Section 108-2 does not con-
template a court issuing an order to effectuate the return
of property under these circumstances; it simply states
the property “shall be returned.” Nor does Section 108-2
or Section 108-11 specify that an arrestee is obliged to
seek a court order to retrieve property taken at the time
of arrest. Section 108-11 provides only that “[t]he court
before which the instruments, articles or things are re-
turned shall enter an order providing for their custody
pending further proceedings,” not that the arrestee
must demonstrate an entitlement to such an order or
even that he must ask the court to enter such an order.
Unless and until the City seeks an order allowing it to
continue to hold an arrestee’s money following the con-
clusion of criminal proceedings, or until a court sua sponte
enters such an order, it would seem that an arrestee
is entitled to his money at the conclusion of the criminal
case and after the time for forfeiture has expired.1 2

12
In their complaints, both Nelson and Gates take issue with
the City’s failure promptly to return their property at the
conclusion of the criminal proceedings. In the class action
count of the complaint, the plaintiffs cite as a common ques-
(continued...)
No. 08-1455 49

Moreover, the City did not confine itself to Section 108,
instead telling arrestees that they needed a signed
Form 54 in addition to other documents in order to
retrieve their money. Both Gates and Nelson were told
they needed a signed Form 54 when they attempted to
reclaim their property. Indeed, the Notice begins with
the words “Property Release Order CPD-34.554 Re-
quired.” The plaintiffs were not told they could present
a Section 108 order or an order from an asset forfeiture
court in the alternative. Nor was Nelson told that his
Pollard notice (the one he never received) would have
been sufficient to reclaim his money. Whether arresting
officers are ever available to sign or willing to sign a
Form 54 is a matter of some dispute, as is the question
of whether the City requires the Form 54 in narcotics
cases. The plaintiffs each tried multiple times without
success to obtain the Form 54. There is evidence in the
record that officers routinely check the “hold for evi-
dence or investigation” box on the inventory receipt, an
action which triggers the need for the Form 54, and

12
(...continued)
tion of law and fact whether the defendants “are required to
provide the Plaintiff with a prompt forfeiture hearing or
must release the money to the property owner immediately
following the final disposition of the criminal charges.” R. 192,
at 9. And of course, the class is defined to include only persons
against whom criminal charges have been resolved in the
trial court. We therefore need not decide whether Gates or
Nelson or any class members have any right to retrieve their
money before criminal proceedings are concluded.
50 No. 08-1455

also evidence that some officers (including the officers
who arrested Gates) do not know what a “CPD-34.554”
is or where these forms are kept. As a routine matter,
then, it appears that arrestees are required to seek a
Form 54 when arresting officers are unable or unwilling
to execute them. As with the Section 108 orders, the
arrestees were required to procure a Form 54 even at
the conclusion of the criminal cases against them, at a
time when the City had no further legitimate claim to
the funds. As in the Second Circuit cases, requiring
arrestees to obtain a signature from a police officer
who may grant or deny it arbitrarily, does not comport
with due process. In light of these conflicts in the evi-
dence and deficiencies in the City’s legal justifications
for shifting the burden to arrestees to demonstrate en-
titlement to their money at the conclusion of their crim-
inal cases, the district court erred in entering judgment
in favor of the City.
A significant amount of money goes unclaimed each
year. The amount of money and the number of arrestees
who are unable to reclaim their money, construed in a
light most favorable to the plaintiffs, are both indica-
tions that the City’s policy (whatever the fact-finder
determines it to be) makes it difficult or impossible for
arrestees to reclaim their money even when their
criminal cases are concluded. There are a number of
open fact questions that would aid the decision of this
case. As we asked the City at oral argument, how many
arrestees each year “donate” their money to the City
and how many reclaim it? What exactly is required of
arrestees in order to reclaim their money? If a Section 108
No. 08-1455 51

order is required, is it actually available to arrestees, and
is it truly a de minimis matter to obtain such an order?
How many arrestees have their money taken by an
officer who checks the “hold for evidence or investiga-
tion” box? How many get it back? How many do not?
How many Form 54s do Chicago police officers sign
each year? How many Section 108 orders are entered,
and how many are denied? Given the impressive
amount of money that goes unclaimed each year by a
class of persons who in all likelihood want it back, has
the City created a policy that places an impermissible
and daunting burden on arrestees to establish an en-
titlement to money that the City has no right to retain?
Summary judgment on the due process claims was
entered in error and we vacate the judgment for pro-
ceedings consistent with this opinion.

C.
Having vacated the judgment related to the due
process claims, we turn to the state law restitution
claims. On appeal, the plaintiffs complain that the
district court erred in dismissing the restitution claims
as moot. The restitution claims, which the plaintiffs
added in the Fifth Amended Complaint, were brought
under theories of unjust enrichment, constructive trust,
declaratory judgment and breach of fiduciary duty. Each
sought the return of the seized money and nothing
more. The City, of course, had tendered the full amount
of each plaintiff’s claim immediately after the first com-
plaint was filed, long before the plaintiffs filed claims
52 No. 08-1455

for restitution and long before they sought certification
of a restitution class. Counsel for the plaintiffs returned
the City’s checks and rejected the tender.
Whether a case is moot is a question of law that we
review de novo. Olson v. Brown, 594 F.3d 577, 580 (7th
Cir. 2010), cert. denied, 2010 WL 1700880 (June 21, 2010). A
case is moot “when the issues presented are no longer
‘live’ or the parties lack a legally cognizable interest in
the outcome.” United States Parole Commission v. Geraghty,
445 U.S. 388, 396 (1980) (quoting Powell v. McCormack,
395 U.S. 486, 496 (1969)). A tender is sufficient when
it makes the plaintiff whole. Gates I, 430 F.3d at 431. In
this case, the City tendered the full amounts the plain-
tiffs requested in the restitution counts long before
the plaintiffs even added these claims to their com-
plaints. That tender ended any dispute over restitution,
and the plaintiffs cannot revive it by simply refusing
the tender. Holstein v. City of Chicago, 29 F.3d 1145, 1147
(7th Cir. 1994). That plaintiffs sought to certify a restitu-
tion class does not change this result because they did not
add the claims or move to certify the class until after
their personal stake in the action had evaporated.
Holstein, 29 F.3d at 1147. The facts do not lend them-
selves to any exception to the general rule, and the
district court therefore correctly dismissed the restitu-
tion claims as moot.

III.
In sum, we find that the district court erred in
granting summary judgment in favor of the City on the
No. 08-1455 53

plaintiffs’ due process claims. We therefore vacate the
judgment in part and remand for further proceedings
on the due process claims relating to notice and proce-
dures to reclaim seized funds. We agree, however, with
the district court’s assessment of the restitution claims,
which were properly dismissed as moot and we there-
fore affirm the judgment in part. Each party shall bear
its own costs on appeal.
A FFIRMED IN P ART,
V ACATED AND R EMANDED IN P ART.

9-27-10