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GATES v. CITY OF CHICAGO
Summary Disposition.
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 receipt Notice warns that the "property will be legally disposed 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 to apprise narcotics arrestees of the procedures necessary 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 adequate 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 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. Krecioch, 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 reasonable 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 disclaimer 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 percentage 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 circumstances of each case to determine whether the notice provided is reasonably calculated to apprise the claimant of pending proceedings). Our court has declined 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,
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 calculated to reach the target. When the sender of the notice has itself delivered the intended recipient to jail, jail is certainly one of the likeliest places to find that target if mail sent to the home address is returned by the post office.
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 Supreme Court in Mullane, which requires us to consider all the circumstances of each case to determine 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 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 predictable 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 establish its right to continue to detain their property through a post-deprivation hearing and yet also would not return their property. See, e.g., R. 17, at 2 ("Fourth, Defendants 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' procedural 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 nevertheless 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 property."). 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 because 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 plaintiffs' 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 procedures 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 entitlement 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 re-questing 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.
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 evidence or the criminal court has released it would contravene 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 concluded and for whom the time for forfeiture has expired. 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 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 instance:
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 provides 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 jurisdiction. 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.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 plaintiffs 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, 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 additionally requires an order from an asset forfeiture court or a Pollard release letter from the Asset Forfeiture Unit 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 requirement stated on the face of the Notice.
The City claims to seek forfeiture in certain cases involving prostitution and gambling in addition to certain narcotics cases.
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 potential problems with the City's argument regarding Section 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 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 requiring 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 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, criminal 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 possession 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. Administrative Code ยง 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 evidence 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 preponderance 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 forfeiture. 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 ownership 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 criminal 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.2d 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 property 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 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 procedures 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 contended 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 recovering 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 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 imposition 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 payment. Citing the Supreme Court's reasoning in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986), and Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), the court noted that pre-deprivation procedures are impracticable in cases of negligent and even intentional deprivations of property 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 procedures.'" 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 procedures, 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 provisions 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 appeared 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.
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 procedures. 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 procedure for the return of that property that comports with due process. If the City is saying that Section 108 provides 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 comport 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 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 before; to prosecute; to proceed with." Black's Law Dictionary, 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 contemplate 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 returned 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 conclusion 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.
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 question 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.
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 Required." 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 evidence or investigation" box on the inventory receipt, an action which triggers the need for the Form 54, and 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 evidence and deficiencies in the City's legal justifications for shifting the burden to arrestees to demonstrate entitlement to their money at the conclusion of their criminal cases, the district court erred in entering judgment in favor of the City.
A significant amount of money goes un-claimed 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 indications 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 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 investigation" 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 entitlement 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 proceedings 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 plaintiffs claim immediately after the first complaint was filed, long before the plaintiffs filed claims 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, ___ U.S. ___, 130 S.Ct. 3478, ___ L.Ed.2d ___ (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, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980) (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (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 plaintiffs requested in the restitution counts long before the plaintiffs even added these claims to their complaints. 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 restitution 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 themselves to any exception to the general rule, and the district court therefore correctly dismissed the restitution claims as moot.
III.
In sum, we find that the district court erred in granting summary judgment in favor of the City on the 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 procedures 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 therefore affirm the judgment in part. Each party shall bear its own costs on appeal.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
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