Redwood v. Lierman

al., al., Plaintiffs-Appellants, v. JOSEPH LIERMAN et et ERIK REDWOOD

Defendants-Appellees. Fourth 4 — 01—0612 District No.

Argued Rehearing February Opinion filed denied June 2002. August 1, 2002. COOK, J., dissenting. Danner, Peoria, (argued), of Charles of and Jude M. Redwood Redwood L. Office, Joseph, appellants. of

Law St. Neal, Terry (argued), E. both D. and Mariah Moran of Gerber Weissman Eisenberg, Chicago, Craig (argued), L. Kendall and L. Unrath both & of Karen Allen, Heyl, Royster, Peoria, Wagner & M. and Elaine of Voelker of Edward Massock, Royster, Allen, Urbana, Heyl, & of and Kenneth both of Voelker D. Thomas, Haughey, appel- (argued), Champaign, Mamer & of Reifsteck lees. opinion

JUSTICE APPLETON delivered the the court: Redwood, complaint Plaintiffs, Erik and Jude filed amended (42 § Rights of 1871 U.S.C. section 1983 of Civil Act under (1994)), its that defendants took van and contents without a alleging Village of due of law. Defendants are the warrant and without mayor, Hackler, (Village), as B.J. Joseph, Illinois as well St. Lierman, deputy of Cham- Village attorney, Joseph and a sheriff Jeffrey The trial the amended paign County, Vercler. court dismissed 2—619 2—615 and complaint prejudice pursuant sections (West (735 (Code) 2—619 the Code Civil Procedure ILCS 5/2 — 2000)). part part. We affirm and reverse

I. BACKGROUND legal A section 2—615 attacks the suf motion to dismiss under under section ficiency complaint, whereas motion dismiss sufficiency complaint, but raises defects legal 2—619 admits or refute crucial conclu negate defenses that the cause action or allegations specific fact. unsupported by of law or fact are sions 469, 484-86, Nickum, 639 N.E.2d Co. v. 159 Ill. 2d Graphics Illinois Farms, (1994); Premier Underwrit AG Inc. v. American 1282, 1289-90 (1998). ers, Mo- Inc., App. 3d 695 N.E.2d 296 Ill. in the well-pleaded either section admit all facts tions dismiss under can together all inferences that be drawn complaint reasonable City Chicago, from those facts in the favor. Lawson v. App. Ill. 662 N.E.2d Review of the dismissal Lawson, App. is de at novo. 278 Ill. 3d at N.E.2d mind, foregoing principles With the in we turn our attention well-pleaded complaint. in the a facts amended Plaintiffs owned “business,” Contractors, in a Quality turn owned 1982 Ford which pos- Econoline van. Plaintiffs an absolute to the immediate May 13, 1997, driveway of the the van on a session van. On in Jude Redwood’s residence 505 East Sherman Street Village. blocks, up The van was on and its front wheels had been removed, repaired. so that brakes could be Village

On October adopted board of trustees of the “Inoperable an ordinance Motor entitled Vehicles.” of St. Ordinance, Joseph Amended tit. ch. Inoperable Motor Vehicles (eff. during October The was in ordinance force the events plaintiffs allege ordinance, their complaint. amended In the mayor “Inoperable and the declare board Motor Vehicles” to be nuisance in vermin, that such vehicles harbor disease and invite plundering, fire, others, pose danger create a risk of to children blight,” and inflict a environment degrading “scenic and diminish- ing land an “Inoperable values. definition of Motor Vehicle” includes a for 14 days vehicle that cannot be driven because of the engine, wheels, parts. removal or other The definition excludes vehicles that temporarily inoperable repairs are because are under way, provided repairs completed days. that the are within ordinance, any

Under the of an “Inoperable owner Motor Vehicle” occupier owner or of land which such a vehicle sits must it, dispose of or building, enclose within a seven days within after receiving a village written notice from the clerk to do so. The notice notify must the recipient may that he or request hearing she on the question of by whether the “Inoperable vehicle is an Motor Vehicle” submitting the request writing the board days within seven after A request hearing date the notice. stays enforcement ordinance, pending and a decision board.

The owner occupant may of the vehicle or the of the land owner for an apply by making request extension of time a written for a hear- ing. receiving application time, When an an extension of the board grant will if days, applicant extension of not more than 30 good shows cause for an extension and submits an affidavit that “Inoperable being expeditious Motor Vehicle” is held for sale or repair. (1) repair

“Expeditious repair” parts that the for have been means yet beyond are not available for installation reasons ordered but (2) control, repaired the is to be owner’s the vehicle scheduled within (3) inoperable the is because of an accident and the days, or vehicle damages considering pursuing a or pursuing owner is claim for is one. 5—6(A) ordinance, “Towing,” says that Section of the entitled 6— notice, if the recipient comply the fails to the sheriff shall: (1) towing of the Motor Inoperable “cause the or removal Vehicle: days following thereafter said private property from or —seven occupant the or of the notice to owner of the vehicle the owner (2) located, public property— where the premises vehicle or following days or thereafter notice to the owner of said seven Ordinance, 5, Village 6, Joseph vehicle.” of St. Amended tit. ch. 5—6(A) (eff. 1990). 9, § Inoperable Motor October Vehicles 6— If, hearing, “Inoper- determines the vehicle is an after a board Vehicle,” by a date able Motor the board will set reasonable which the disposed enclosed. The ordinance vehicle must be of or states: disposed “In the event is not of or enclosed said vehicle within building by Trustees, said date set Board then towing Champaign deputy or shall cause the County Sheriff sheriff further, prior Motor without Inoperable or removal Vehicle Joseph Ordinance, notice thereof.” of St. Amended tit. (eff. 5—6(B) Vehicles, § Inoperable ch. Motor October 6— village clerk a notice Erik May upon On served Quality offices The notice Redwood at the Contractors. stated van, registered Quality which was the name of Contractors Street, “Inoperable Motor was located at 55 East Sherman was an it, it, or in a dispose Vehicle” and that he remove enclose it must The notice Redwood of building days. within seven informed his hearing dispose if request and that he did not request van, days, “subject or enclose it seven the van was to be- within ing impounded.” towed and 19, 1997, May May between 13 and one both of the

Sometime upon Village, requesting an plaintiffs served notarized affidavit 19, 1997, May making repairs to the van. On extension of time letter, plaintiffs “[a] responded notifying clerk with a village vehicles notices hearing inoperable has been scheduled for three on 1997.” The record you by deputy May sheriff delivered at 505 East Sherman inoperable does not reference other vehicles May 27, 1997. the van. The was scheduled for Street besides fin- days an of 30 hearing, plaintiffs requested extension At waiting delivery for the ish the van repairing because parts granted that had been ordered. The board extension of seven days, until June completed repairs Plaintiffs on June 1997, replaced wheels, the front and removed the van from the blocks. On June 3 and drove the van to work. On June the van was spot at a different Jude Redwood’s residential property at 505 East Sherman Street. Erik Redwood had left his tools and toolboxes inside the date, van. On that deputy sheriff Vercler entered Jude land, Redwood’s without a warrant and without her consent, and towed the away van under color of the ordinance. Vercler acting Hackler, on the advice or Lierman, orders of and the Vil- lage, or on the advice or orders of some of them. When retrieved the van from the towing company, paying towing after a $75 fee, the tools and gone. toolboxes were

In their amended complaint, which they filed on June plaintiffs alleged that defendants violated the fourth and fourteenth (U.S. Const., amendments XIV) and, therefore, amends. section IV — by entering private property searching and seizing and the van 1983— without a warrant and giving without first them notice and an op- portunity hearing. for a The complaint purports to sue Hackler and Vercler in their “official and capacities.” I, individual In II, III, counts and plaintiffs sued Lierman, Hackler, Vercler, Village, and the IV respectively, for depriving them of property process without the due law, in violation of the fourteenth VI, amendment. VII, counts V VIII, and plaintiffs sued the same unreasonably defendants for search- ing and seizing van, “without their consent and without a war- rant,” in violation of the fourth amendment. Defendants filed motions to dismiss the amended complaint pursuant to sections 2—615 and 619, contending plaintiffs that had failed plead to a violation of 2— either the fourth or fourteenth amendment and contending also common-law immunities and a statute of limitations barred the claims. In an “Opinion Memorandum and 22, Order” filed on 2001, March the trial granted court motions, dismissing the amended complaint prejudice. with

The trial partly court disagreed with rejected defendants. It defendants’ contention that the two-year statute of limitations barred the claims. See Garcia, 261, Wilson v. 280, 471 U.S. 85 L. Ed. 2d (West 2000). 105 S. (1985); Ct. 735 ILCS 5/13 — 202 The court found that claims, the new in the complaint, amended arose out of the facts that pleaded original complaint. 616(b) (West See 735 ILCS rejected The court also 5/2 — defendants’ contention that the entry onto Jude Redwood’s land and the towing random, van were unauthorized acts that could not be attributed to the Village. Taylor, See Parratt v. 537- (1981), 430-34, 101 S. Ct. 1914-17 over- 68 L. Ed. 2d Williams, Ed. grounds by

ruled other Daniels v. 88 L. 106 S. Ct. 662 defendants, however, agreed plaintiffs’ as to failure The court to state a cause of action for violation the fourteenth amendment. the United Appeals court cited decision of States Court Circuit, Milwaukee, City Seventh Sutton 1982), governmental court held wherein the officials opportunity prior need and an to be heard to give owners notice reasoning, towing illegally parked By trial court’s if the due cars. process require City provide clause did not of Milwaukee to own an opportunity hearing prior towing illegally ers notice or vehicles, require clause process due did not provide procedures entering those before Jude Redwood’s towing away thought and what it an residential inoperable Nevertheless, noted, plaintiffs van. the court received those procedural protections required. By enforcing ordinance an as the procedural protections generously ordinance bestowed over required, process the due clause the court reasoned that above what Hackler, Lierman, could not Vercler have violated due clause. unclear, law, from the agreed

The trial court also that was case the fourth forbade defendants had done. whether amendment what Consequently, qualified immunity, the individual defendants had a See “other affirmative matter” that defeated the claims them. 619(a)(9) (West 2000). According court, to the 735 ILCS because 5/2 — liability governmental shields officials from civil unless law clearly rights constitutional and because the violate established established, clearly constitutional in this case was not liability defendants immune from under section 1983. individual 800, 818, 396, 410, Fitzgerald, See U.S. L. Ed. 102 Harlow v. 457 73 1180, Wade, 2727, (1982); S. 2738 Rakovich v. 1210 Ct. 1988) (where approach Seventh Circuit outlines based standards). concerning alleged violation of constitutional Harlan 44, Scott-Harris, 54, 79, 88, U.S. 140 L. Ed. 2d 118 Citing Bogan v. 523 966, (1998), S. 972 the trial court further held Ct. legislative immunity.

itself had Vercler, held that deputy sheriff the trial court As for pursuant [he] to establish that acted plead “failed to facts Champaign County policy promulgated by an official or custom The trial deemed unconstitutional.” court Sheriffs office could be 364, 49 L. Ed. 2d Opperman, v. 428 U.S. held that under South Dakota 1000, (1976), police remove or authority Ct. 3092 “the 96 S.

1081 seize parking vehicles for ordinance violations when those vehicle[s] impede public safety traffic or threaten and ‘beyond convenience is ” challenge.’ Accordingly, the trial court dismissed the amended complaint prejudice. appeal

This followed.

II. ANALYSIS A. Fourth Amendment The fourteenth ap amendment makes the fourth amendment plicable 56, 61, to the states. Soldal County, v. Cook 506 U.S. 121 L. (1992). 450, 458, 538, Ed. 2d 113 S. Ct. The fourth amendment part states in “right people of the to be secure in their persons, houses, papers, effects, against unreasonable searches seizures, Const., shall not be violated.” U.S. amend. The Fram IV. ers would have understood personal “effects” to mean property. Oliver States, v. United 170, n.7, 466 U.S. n.7, 80 L. Ed. 2d (1984). S. Ct. 1740 n.7 Governmental officials “seize” property interfere, when they in a meaningful way, with possessory someone’s Soldal, interest in that property. 506 U.S. at 121 L. Ed. 2d at 113 S. Ct. at 543.

“In ordinary case, [Supreme] Court has viewed a seizure personal per as se meaning unreasonable within the Fourth Amendment accomplished unless it is pursuant judicial to a upon probable warrant issued particularly cause and describing the Place, items to be seized.” United 696, 701, States v. 462 U.S. 77 L. 110, 116-17, Ed. 2d (1983); 103 S. Ct. Camara v. cf. Municipal Court, 523, 528-29, 930, 935, 18 L. Ed. 2d S. 87 Ct. (1967) 1727, 1730-31 (“except in certain carefully defined classes cases, a private property search of proper without consent ‘unreasonable’ unless it has been authorized a valid search war rant”). Even if a public official building enters with the intention abating nuisance, the official ordinarily must Michigan Tyler, 499, 504-05, warrant. v. 56 L. Ed. 2d The fourth protection against amendment’s unreasonable fully Soldal, searches and seizures “applies the civil context.” U.S. at L. Ed. 2d at example, 113 S. Ct. at 546. For (Mo. Louis, Bezayiff City St. App. S.W.2d 231-32 1997), an ordinance city private property allowed the to enter remove obtaining disabled automobiles without first the consent of obtaining landowner or of Appeals warrant. Court of Mis souri held that “[t]he ordinance is unconstitutional under the Fourth Amendment it purports insofar as to authorize removal of vehicles

1082 at 235. Bezayiff, 963 S.W.2d without a warrant.” private property persuasive. Bezayiff find to be

We the case, allege that defendants seized In present private Jude Redwood’s residential parked the van was on van while sitting the van was within may reasonably One infer property. had no allege that defendants curtilage of her home. Plaintiffs “effects.” If the the land and seize their to come onto warrant Place, luggage held, depriving someone Court Supreme possessory meaningful enough interference with minutes was a 90 van, along “seizure,” towing away qualify as a interest Place, toolboxes, 462 U.S. at 709- certainly qualifies. with the tools and Although Quality 122, S. Ct. at 2645-46. 10, L. Ed. 2d at van, technically owned the Contractors, plaintiffs, than rather van, “possessory and a possess and use the plaintiffs had the the fourth amendment. standing under enough interest” is confer 459, 113 S. at 544 Soldal, at 121 L. Ed. 2d at Ct. See (where amendment extends to held that the fourth Supreme Court course, Erik the tool Of Redwood owned privacy). as well as boxes and tools. proposition police Opperman relied on

The trial court public those vehicles “threaten authority to seize vehicles when However, to be factu- we find that decision safety and convenience.” police judice. Opperman, from the case sub ally distinguishable Opperman, in a restricted zone. illegally parked was towed car that at 3095. While 365-66, 49 L. Ed. 2d at 96 S. Ct. U.S. at lot, police impound the car in the inventorying the contents of 2d at at 49 L. Ed. bag marijuana. Opperman, 428 U.S. found a charges the car on arrested the owner of They at 3095. 96 S. Ct. L. Ed. 2d at 428 U.S. at marijuana. Opperman, possessing the evidence on the suppress He moved to S. Ct. at 3095. the fourth amend- it in violation of ground police that the had obtained 1003-04, S. Ct. 366-67, 49 L. Ed. 2d at 428 U.S. at Opperman, ment. reasons, Court held that the search Supreme at 3095-96. For two mobility of First, “the inherent unreasonable. and seizure were not that, exigency practical as a of such automobiles creates circumstances impos- is requirement enforcement of warrant necessity, rigorous at 2d at 96 S. Ct. 49 L. Ed. Opperman, sible.” respect to one’s privacy with Second, expectation “the 3096. home or of- relating to one’s less than that significantly automobile L. Ed. 2d at U.S. at Opperman, fice.” parked it Opperman, was seized the car police When park- municipal to which public place or in some other the street ing applied. present case, by contrast, ordinances In the when van, defendants seized the on Jude Redwood’s property, residential allegedly curtilage within the of her home. The distinction is The curtilage, immediately surrounding crucial. the land home, and associated “warrants Fourth Amendment protections Oliver, 180, that attach to the home.” 466 U.S. at 80 L. 225, Ed. 2d at 104 By parking driveway S. Ct. a vehicle in the yard home, or of brings privacy one’s one the vehicle within the zone of relating short, In backyard one’s home. one’s is a vastly different place, purposes amendment, of the fourth than a public street.

Defendants contend Village gave that because the plaintiffs notice and an opportunity to prior entering be heard Jude Redwood’s land van, and seizing did not violate the fourth In amendment. brief, their repeatedly defendants confuse the fourth amendment with the fourteenth example, they amendment. For support cite Parratt in *** argument of their the fourth amendment “does not protect deprivations all property by State, of only but those deprivations without due process Parratt, however, of law.” distinguishable in that respondent in that alleged case a violation of the fourteenth amendment and not the Parratt, fourth amendment. 536, 68 L. Ed. Further, 2d at 101 S. Ct. at 1913. Village is the one providing process, not a neutral and detached judicial Supreme officer. The “long Court has insisted that inferences probable of purpose [for cause issuing warrant] be drawn ‘a neutral and magistrate detached being judged instead of by the of- ficer engaged in the competitive often enterprise ferreting out ” crime.’ City 345, 350, Shadwick v. Tampa, 407 U.S. 32 L. Ed. 2d 783, 788, 92 S. (1972), Ct. 2123 quoting States, Johnson v. United 10, 14, (1948). 333 436, 440, U.S. 92 L. Ed. 68 S. Ct. City Ana, Conner v. Santa 1487, 1489, 1990), the court held city that the had violated the fourth amendment by entering plaintiffs’ yard seizing fenced appar some old and ently inoperable automobiles. The district court had concluded that the warrantless seizures of the automobiles did not violate the fourth amendment, because, case, as in argue defendants this the seizure was preceded by numerous hearings Conner, administrative and appeals. 897 F.2d at 1490. The court appeals rejected reasoning held that “process there was no exception” requirement to the of a Conner, warrant. 897 F.2d at 1491.

Except for a specifically “few established and well-delineated exceptions,” judicial process, “searches conducted outside the without prior approval by judge magistrate, per are se unreasonable under States, Fourth Amendment.” 347, 357, Katz v. United (1967). rule Obviously the same S. Ct. L. Ed. 2d 116-17, Ed. 2d at Place, 462 U.S. at 77 L. applies to seizures. how this case fits into explained Defendants have not S. Ct. at 2641. Therefore, hold that exceptions. we carefully drawn any of amend- of the fourth sufficiently pleaded violation ment. Fourteenth Amendment

B. Process Duel Towing, 1. Prior to the What Was illegally parked public car streets municipality may A tow a opportunity giving the of the car notice and without first owner municipal Sutton, It does not follow that hearing. 672 F.2d at 648. first private property without ity can tow a car on the owner’s affording procedural safeguards. those required no that the due clause

To arrive at its conclusion ap- for a the Seventh Circuit Sutton opportunity notice or Supreme Court set forth analysis plied cost-benefit 47 L. Ed. 2d Eldridge, Mathews v. U.S. procedural compared “the benefit court function of the value of the

safeguard sought, which is a if the probability deprivations of erroneous interest at stake and Sutton, safeguard.” safeguard provided, not with the cost is F.2d at 645. slight. to be property deemed the value of the interest

The court hours. Sut merely of the car for a few The lose the use owner would opportunity for a ton, By giving notice and an 672 F.2d at 646. vehicle, city the ran no towing illegally parked the hearing prior to Sutton, 672 F.2d at inflicting deprivation. an erroneous great risk of illegally or parked a car was quite it was clear whether Typically, 646. convincing a trier of fact that not, there seemed little chance and the Sutton, Finally, legally. parked the car had been great. If safeguards would have been providing pretowing the cost of hearing opportunity prior an for a provide a notice and city the had to effectively stop would have to cars, city the towing illegally parked to traffic and cars, though such cars blocked illegally parked even towing weighing those fac Sutton, F.2d at 646. After emergencies. caused the due another, held that one the Seventh Circuit tors opportunity and an provide notice require city did not the clause Sutton, public streets. towing illegally cars hearing before F.2d at 646. ap Sutton without case, applied trial court present the the actually comparing in difference facts without preciating First, the value of did in Sutton. as the court three factors greater in than present interest stake case would be somewhat vehicle, By towing that in Sutton. an away inoperable motor Vil- lage announcing is its determination that the vehicle is not welcome Village building. only unless it is enclosed in a Not will the retrieving towing company, incur the cost of owner the vehicle from the but, vehicle, building unless owner has a that can accommodate the parking he or she will incur the additional cost of the vehicle elsewhere, Village Second, Village outside likely limits. is to make mistakes if it offers no at all. One often cannot tell whether a operable simply looking Third, vehicle is at its exterior. the cost of providing procedures slight. If, an pretowing qualify as “Inoperable Vehicle,” 14 days, Motor the vehicle sat immobile for additional provide requisite hearing time needed to would not make appreciable quality an difference in the life in the Village. prior towing

We hold that away “Inoperable Motor Vehicle” from private property, Village residential provide must reasonable notice persons to interested and an opportunity hearing. for a See Mullane v. Co., 306, 313-14, Central Hanover Bank & Trust 94 L. Ed. agree We do not with the trial predeprivation court that those procedures optional. As one federal district court has said: *** light “In position of motor vehicles as virtual ‘neces ordinary,

saries for day-to-day living’ [citation], society American reasonably cannot disputed impoundment be that the of one’s may automobile constitute ‘grievous [Cita or eventuate a loss’. Thus, tion.] before a government may state or local interrupt so its use, Nicholl, the owner is entitled process.” to due 370 F. Graff (N.D. Supp. Ill. 2. Did the Village Adequate Provide Pretowing Procedures? argue Defendants that plaintiffs adequate received an notice hearing. served a upon notice Jude Redwood while the van sitting on blocks in her driveway with the wheels off. Plaintiffs had a in which the board ordered them to restore the van to working order days. seven-day within seven Within the period, plaintiffs completed repairs thereby complied to the van and with the Village’s Mayor order. When deputy Hackler ordered sheriff Vercler to van, tow the only on, did the van have the wheels but it was off blocks and in a different location on Jude Redwood’s property. appearance The changed. location of the van had is, question Village given plaintiffs should the have a and a new notice new opportunity hearing prior towing for a the van? hold it We should have. “ process, rules, ‘[D]ue legal unlike some is not a technical time, placet,] and fixed content unrelated conception with a ” Supp. quoting & Graff, circumstances.’ 370 F. Cafeteria Union, McElroy, Local 473 v. Restaurant Workers (1961). 1230, 1236, op- “The notice and L. Ed. 2d 81 S. Ct. granted meaningful must be at a time and a portunity to be heard meaningful Graff, Supp. manner.” 370 F. at 981.

If, days, up at the end of the seven the van was still on blocks off, to a plaintiffs and the wheels were still would have had no hearing. plaintiffs and another Those are not the facts that new notice realized, amended complaint. might One have or pleaded their suspected, repaired, that had been because strongly at least van spot. the wheels were on it and it had moved to a different Plaintiffs only repaired needed to be had informed the that brakes operable. be repaired, and that once the brakes were the van would plaintiffs could work on the brakes. That The wheels were off so strong plaintiffs indication that the wheels now were back on was van, circumstances, To tow the in these repaired brakes. high inflicting hearing without first was to run a risk at a deprivation. hearing an erroneous Plaintiffs had a but not repairs in “meaningful timely time.” Once made the obedi order, original that had occasioned the ence to the board’s the matter towing matter, presented notice and was resolved. The new hearing. opportunity notice and a new requiring new C. Section 1983 states, in part: Section 1983 *** *** ordinance, who, “Every person under color of subjects, subjected, any citizen of the United States or causes to be *** deprivation any rights, privileges, or immunities to the ***, injured by party shall be liable to the secured the Constitution (1994). § ***.” U.S.C. “persons” units are

Municipalities governmental and other local Department Monell v. Social meaning of section 1983. within 611, 635, Services, L. Ed. 2d 98 S. Ct. there Supreme Court held following passage, In the liability under section 1983: respondeat superior can be no injury § 1983 for an government may not be sued under “[A] local Instead, execu- agents. or it is when solely by employees inflicted its ***, made its lawmakers government’s policy tion of a whether of- may fairly represent by those whose edicts or acts be said entity injury government as an policy, ficial inflicts Monell, Ed. 2d at § 436 U.S. at 56 L. responsible under 1983.” 2037-38. distinguish between to policy” an “official is requiring The purpose Ross United employees. act of its municipality and the act of a 1990). (7th applications of Multiple Cir. States, F.2d can a existence, there be policy’s but policy tend to confirm the Ross, time. implemented only it one policy though has been even The said: at 1430. Seventh Circuit by municipali- is a particular a of action authorized “Where course decisionmakers, represents policy rightly at- it a ty’s authorized case, there governmental entity, and a is no to the in such tributed to at- proof policy’s multiple applications resort to of the need to Ross, municipality.” existence 910 F.2d tribute its to the Lierman ordered or advised Vercler to tow When and Hackler a hear away opportunity van without notice and an repaired Clearly, ing, implementing policy Village. not a of the they were required hearing. and an for a Village’s opportunity ordinance notice alleged plaintiffs’ due Therefore Lierman’s and Hackler’s violation process rights under the amendment cannot be attributed fourteenth to Village. argue Plaintiffs that because the ordinance did not expressly require they to ask them whether had made the someone do, repairs permitted had to as the board ordered them the ordinance misunderstanding Village a to It not that the actu occur. does follow ally towing condoned vehicles without first what owners say. appear, complaint, Nor does from the amended misunderstandings past. similar ever had occurred in the Although required opportunity the ordinance a notice and an for a require reasonably it did not a One could infer that warrant. deputy when Lierman and Hackler told sheriff Vercler to have the van from Jude away towed residential without Redwood’s obtaining warrant, implementing Village’s policy first a they were 5—6(B) in respect. all, After of the ordinance does section 6— following: disposed state the “In or the event said vehicle is not building by by enclosed within a the said date set the Board of Trustees, Champaign County deputy then the Sheriff sheriff or shall towing Inoperable without cause the removal of the Motor Vehicle further, prior Joseph notice Amended thereof.” St. 5—6(B) (eff. Ordinance, Vehicles, § ch. Inoperable tit. Motor 6 — 1990). detail, describe, in some purports October ordinance leading towing, specifies and it when the procedures up stayed. Obtaining a warrant is enforcement ordinance should be in among procedures, only and the circumstance which stayed hearing the board are enforcement is decision when pending. amendment, plaintiffs to the respect

With violation of fourth pleaded policy Village, attributable to the but have not pleaded policy County. attributable to the sheriff of Champaign By suing deputy sheriff in capacity, plaintiffs Vercler his official effect governmental entity sued the a part, which he of- sheriffs fice. McCaughtry, See Sanville v. 732-33 The trial court in dismissing was correct the “official capacity” actions against Vercler. Mayor

Insofar as sued capacity, Hackler his official they merely against restated their cause of action and for Village, that reason the trial capac- court’s dismissal of the redundant “official ity” Further, held, actions proper. him was as Mayor we have alleged Hackler’s fourteenth amendment violation is not attributable Village, Village to the and the liability cannot incur for it an “of- via capacity” Village ficial against may action him. The be under liable amendment, but fourth because already pleaded that VIII, in count theory plead again guise there was no need it to in the “official capacity” an action Mayor Hackler.

D. Common-Law Immunities Legislative Immunity

1. Supreme In Bogan, the Court legislators “[l]ocal held that are § to immunity liability entitled absolute from 1983 for their legislative Bogan, activities.” Ed. 2d at Ct. at L. 118 S. Village legislator; governmental entity. 972. is not it is legisla Therefore the trial erred in holding Village court that the immunity. tive alleged Lierman,

Plaintiffs attorney, as the drafted the ordinance. legislative immunity Lierman is correct that he has for in drafting his assistance Aitchison Raffiani, ordinance. See v. (3d 1983) (borough attorney 99-100 Cir. who assisted in draft

ing legislation legislative immunity). to also al entitled Plaintiffs leged deputy that Lierman “authorized ordered” sheriff Vercler legisla seize van. act legislative nature, Because that was not immunity extend County, tive does not to it. See Heiar v. Crawford (W.D. 1983) Supp. 1175, acts,” (“legislative 558 F. Wis. of, about, purposes immunity, include “the introduction debate voting legislation”). on local Immunity Qualified argue

Defendants that under the facts in the amended complaint, they qualified immunity liability are entitled to a from applicable legal clearly standards because established governmental official deciding the time acted. When whether the official decide whether immunity, the court first will qualified has the court will rights, then violated the constitutional time the clearly established at the rights were decide whether those (7th 1996). Lewis, v. 87 F.3d Cir. official acted. Montville course, free unreasonable searches and right to be Of taking are right and the to due before seizures general purposes established, those are too clearly but truisms im- discussing governmental qualified official’s analysis. this Supreme has munity, the Court said: right must have been alleged the official is to have violated

“[T]he ‘clearly in a and hence more particularized, established’ more relevant, sufficiently The contours must clear sense: be doing he is that a reasonable official would understand that what say This is official action right. violates that not to very question protected qualified immunity unless the action in [citation]; say that previously has been held but it is to unlawful light pre-existing apparent. law the be unlawfulness must Creighton, v. 97 L. Ed. [Citations.]” Anderson S. Ct. words, set of In other while cases with the identical facts are unneces- sary, sufficiently analogous there must be cases that are that “reason- diligent governmental law, the case ably officials have known of would hand, related situation at and molded their conduct accord- Johnson, ingly.” Lojuk v. Rakovich, binding precedent. The cases need not be 850 F.2d at “ ‘ binding precedent,

1209. Absent “a court should look to whatever law is clearly decisional available ascertain whether the law is ’ ” Rakovich, Light- quoting established.” F.2d at Powers (7th ner, 1987), Reed, quoting Capoeman Cir. 1512, 1514 F.2d already Bezayiff

We have cited and discussed and Conner. The factually in cases are similar to fourth amendment violations those persuasive are alleged the violation in this case. Other cases likewise Camara, though towing did not of cars. In even cases involve U.S. at 18 L. Ed. 2d at 87 S. Ct. fourth entering and municipal inspector amendment forbade a health Oliver, a inspecting apartment someone’s warrant. without Supreme L. Court U.S. at 80 Ed. 2d at curtilage of home itself part held that is considered holdings, of the From those should purposes fourth amendment. apparent lying been seizure of a chattel have warrantless Compare curtilage ordinarily of a home is unconstitutional. within (in Conner, to (responding court said a at 1492 which the qualified of immunity): light Tyler “[I]n claim of it is difficult understand requiring anything how the law warrant less than clear”). Considering the well-pleaded facts of the amended complaint (see light plaintiffs in most Corp. favorable Dial v. Marine Office America, App. Ill. (2001)), N.E.2d do not agree we qualified individual defendants have im munity for their violation of the fourth amendment. hold, however,

We that the individual quali defendants have immunity fied their violation fourteenth amendment. To necessity governmental understand the for another of ficial would to perform analysis have had a factual and to his apply judgment or discretion to those The due process facts. violation would necessarily reasonably not have been to a diligent clear official. reasonably Defendants could believed that because hearing prior towing, a little more than a week another hear was not ing required. stated,

For the dismissing reasons the trial court in was correct the “official capacity” actions Vercler and Hackler. The trial dismissing I, II, court was correct in counts and III the amended complaint, against Lierman, Hackler, the counts and Vercler for violation of the fourteenth amendment. The trial court also was cor- in dismissing complaint, rect count IV of the amended the count against the for a violation the fourteenth amendment. erred, however, VI, VII, court dismissing V, trial and counts VIII complaint, the amended and we reverse dismissal those counts.

III. CONCLUSION part We affirm part judgment reverse in the trial court’s and remand for proceedings further not with this inconsistent order. part;

Affirmed in part reversed in cause remanded. McCullough, ej., concurs. COOK,

JUSTICE dissenting: I respectfully dissent and affirm the decision of the would trial due court. Plaintiffs were denied under fourteenth given amendment: were notice and a before their busi- van Nor “inoperable.” ness was declared denied rights ignores under The majority the fourth amendment. the cases holding unnecessary municipality that a when a seizes warrant nuisance, relying be a instead has been declared to immunity” Finally, “qualified the much-criticized Conner case.

1091 the plaintiffs are not able to show protects government officials where not shown “clearly right, of a and have violation established” any such violation here. actions be terminated important

It is that meritless section 1983 lawyers, of whom are plaintiffs, It is unfortunate that both quickly. long, May over 1997 up tie the for so this have been able to pleadings does to decide cases on incident. Our normal reluctance pleading require- apply federal circuits strict apply not here. Most is- complaints implicating qualified-immunity ments to section 1983 Corrections, 52 See, e.g., Department v. Eddington sues. Missouri of (8th F.3d 779 n.3 Cir. judg summary A section 2—619 motion is similar a motion case, there ment, being early it comes in the before one difference that Line, Inc., Freight v. 175 discovery. Leow A&B opportunity is (1997). 176, 187-88, 1284, 1289 It is appropriate Ill. 2d 676 N.E.2d sum decide the issues raised here on a section 2—619 motion. “On determine, judgment, judge only the mary appropriately may not law, currently applicable clearly but that law was established whether *** immunity at the time an action occurred. Until this threshold resolved, Harlow, discovery is allowed.” question should not be at 73 Ed. 2d at 102 S. Ct. at 2738. U.S. L. majority, no

Despite the concerns there is doubt that junk ordinance here “General welfare accommodates vehicle is valid. unsightliness free other concept that an environment and police will power visual intrusion enhances life and is value that protect.” 963 S.W.2d at 229. “The ordinance us was Bezayiff, before unquestionably purpose for the health and promoting enacted community.” protecting safety of the members of the Radcliff (1984) Berwyn, Ill. N.E.2d City App. 3d (“the are unkempt of such areas to rats and attractiveness vermin known”). well I, III, IV¡ II, plaintiffs’ argument

Counts based on the process amend they were denied due in violation of fourteenth given ment, argument must be dismissed. The relies. process rejected by very majority cases on which due process due are notice requirements procedural The fundamental however, requirement, “There opportunity and an to be heard. is no comply in order to that a court must be involved in Conner, “A is un F.2d 1492-93. warrant the constitution.” has declared necessary municipality property been when a seizes Free police procedures.” power a nuisance means of established 2001) (en banc), Dallas, City 644-45 man v. F.3d denied, Ed. 122 S. cert. 151 L. Ct. notice,

Plaintiffs here were afforded written could sought enjoin Village’s administrative or to review action Conner, 1493; the circuit See court. see 65 ILCS 5/1— 2000). (West 2.1 — 7 The determination that this was an inoperable not an arbitrary vehicle was determination. present hearing

Plaintiffs at at a which the vehicle was found ordinance, be inoperable. to Under the the vehicle was then to be “disposed building by of or enclosed by within a the said date set (Village Joseph Board of Trustees” of Ordinance, St. Amended tit. 5—6(B) (eff. 1990)) Vehicles, § Inoperable ch. Motor October 6— or it would be towed the sheriff without further notice. Plaintiffs requested alternative, an additional that repair be allowed to set, date granted request. vehicle before the and the board The repair wisely ordinance did not include as an It possible alternative. for the sheriff to determine a disposed whether vehicle has been of or enclosed, but does he repaired? how determine whether it been has present case, how would sheriff know that the vehicle had repair time spent shop in a or that the taken it had to work Putting inoperable several times? wheels on an and it moving vehicle may nothing assigned be more than a The of duty ruse. ordinance determining operable board, whether vehicle was to the not to the sheriff, and if indicating evidence that the board should finding of inoperability, plaintiffs reconsider its should have made that to information the board. known suggestion

There is no here that the Board was somehow incomplete. majority recognizes continued or The Board had inoperable, found the to be and vehicle the vehicle could have been “[i]f, days, end of up towed at the the seven the van was still on blocks App. majority and wheels were still off.” 331 Ill. 3d at 1086. The holds, however, there should have been a second a hear ” ing ‘meaningful App. quoting “at a time.’ 331 Ill. 3d at Graff, Supp. majority’s F. Under analysis At 981. there would be of never-ending hearings series to make sure the had not vehicle been repaired last Once hearing. since the the determination had been inoperable, plaintiffs made that the vehicle was had the burden to bring warranting new reconsideration attention facts to the board. VI, VIII, and complaining Counts VII that defendants’ failure to V amendment, violated fourth

obtain warrant must also be majority quotes Bezayiff proposi The and for the dismissed. Conner “ [fjourth tion that an ‘ordinance is unconstitutional under [ajmendment to purports as it authorize removal of vehicles insofar ” App. 331 Ill. 3d at 1081- property from without a warrant.’ 235; Conner, at 1490. 897 F.2d at quoting Bezayiff, S.W.2d contrary. “The held to the and cases have More recent better-reasoned [ajmendment [fjourth bar no to Eighth have found and Sixth Circuits proceedings, satisfac and eviction where warrantless condemnation F.3d Freeman, 242 tory preceded them.” procedures administrative (8th 1996); 652; Meriwether, 94 Cir. Hroch v. F.3d Samuels (8th 1993); City v. Omaha, 4 Cir. City F.3d Flatford disagree Conner Monroe, “We 1494-98, dissent, Judge 897 F.2d at reasons stated in Trott’s [fjourth [a]mendment reasonableness.” based on our evaluation Freeman, 242 F.3d at 652. Supreme requirement “did a warrant sort

The Court extend Freeman, in Camara. inspections” administrative Camara, however, applied did not that the fourth amendment hold administrative applied extent to criminal searches the same Camara, present distinguishable case is further searches. gather Here, noncompliance. which involved search to evidence of already obtained municipal evidence code violations had been adjudica when the sheriff entered the administrative Freeman, noncompliance tion of had See at 650-51. occurred. Camara, discretion; inspectors present unbridled in the case, may municipal specified grounds code vehicle be which determined inoperable. to be The defend vehicle owners’ against procedurally Freeman, case See their vehicle secure. F.3d at 651.

Permitting damages governmental suits officials can entail costs, including personal substantial fear of social risk unduly monetary liability harassing litigation inhibit officials will Harlow, discharge 814, in at L. Ed. 2d of their duties. 457 U.S. 408, accordingly adopted at The Supreme 102 S. Ct. at 2736. Court has qualified “government perform- immunity, doctrine officials ing discretionary liability [ generally ] functions are shielded from damages not clearly civil insofar as their conduct does violate rights of which a reasonable statutory established constitutional Harlow, 818, 2d person would known.” 457 U.S. at L. Ed. at 183, 2738; Scherer, L. Davis v. Ed. at 104 Ct. The must S. 3020-21 unlawfulness Anderson, apparent light preexisting be law. summary judgment, 2d at S. 3039. L. Ed. 107 Ct. at On

judge determine, may only currently applicable not appropriately law, clearly time an ac- but whether “that law was established 410, Harlow, tion L. Ed. 2d at S. occurred.” 457 U.S. at only majority’s requiring Ct. at is not 2738. rule warrant Qualified immunity clearly established, applies. it is not the law. argue, essentially Plaintiffs not that a hearing, were denied but that hearing, resulting a mistake was made after the pay- their ing towing fee and loss of their Even assuming $75 tools. mistake, made a a negligent deprivation defendants of property, result- ing actor, from random and unauthorized of a conduct state does not give procedural to a due claim rise under the fourteenth long provides amendment so as state an adequate postdeprivation Parratt, 433-34, remedy. 451 U.S. at 68 L. Ed. 2d at 101 S. Ct. at 1917. COOPER, Plaintiff-Appellant,

MARK ALAN ILLINOIS STATE al., Defendants-Appellees. et UNIVERSITY Fourth District No. 4 — 01—0644

Opinion filed June

Case Details

Case Name: Redwood v. Lierman

Court Name: Appellate Court of Illinois

Date Published: Jun 7, 2002

Citation: 772 N.E.2d 803

Docket Number: 4-01-0612

Court Abbreviation: Ill. App. Ct.