A judge has split up a longstanding legal action challenging Chicago’s vehicle impounding policies, but will allow plaintiffs to keep pressing their claims that the city violated their constitutional property rights by seizing vehicles and then selling them to tow companies before the owners had enough time to retrieve their cars.
In June 2019, attorneys with the firm of Myron M. Cherry & Associates, of Chicago, filed suit on behalf of named plaintiff Andrea Santiago. The lawsuit aims to force the city to pay up to two classes of perhaps tens of thousands of car owners whose vehicles were either towed by the city after being declared abandoned, or were later “disposed of by the city” — a phrase that often meant the cars were sold to tow companies, which later resold the vehicles for scrap and parts.
In November 2020, after the city removed the complaint to federal court, U.S. District Judge Matthew Kennelly said Santiago’s complaint met thresholds needed to certify it to proceed as a class action. The city appealed, and the U.S. Seventh Circuit Court of Appeals vacated Kennelly's order and sent the case back to district court in December.
Jacie C. Zolna
| Myron M. Cherry & Associates
After Santiago filed an amended complaint, the city again moved to dismiss. Kennelly ruled on that motion in an opinion issued April 5, only partially granting the city’s request.
Santiago’s amended complaint sought to create two classes, one for people whose vehicles the city towed away and a second for those whose vehicles the city sold.
According to court documents, Santiago is a senior citizen who uses a wheelchair due to multiple sclerosis. Her daughter, Lisanda Velez, drives Santiago in her mother’s vehicle. On June 5, 2018, a city employee placed a sticker on the window of Santiago’s 1998 GMC Savanna 1500 indicating the city deemed the vehicle abandoned and would tow it if not moved within seven days. Velez saw and removed the notice but didn’t tell her mother, although she did move the van and put signs in the windows indicating it wasn’t abandoned.
On June 13, the city towed the van and mailed two impound notices. Before July 5, Velez tried to recover the van, but the lot denied her request because Santiago is the sole owner. Velez returned later that month with a notarized letter, but the vehicle was disposed of on July 16, 2018.
Kennelly granted some wins to both sides on the question of whether the lawsuit can continue.
Notably, Kennelly sided with Santiago's position that the city violated Fifth Amendment rights of vehicle owners when it sold their cars.
“It cannot be said that one has notice that her car will be disposed of when the city does not follow the procedures outlined in its ordinances,” Kennelly wrote. “Based on the ‘additional notice’ language of the ordinance, it would be reasonable for a vehicle owner to think that her car will not be disposed of until the city sends an additional notice after the first one. The court further notes that the mailed notice that Santiago received contained inaccurate information regarding how long she had to collect her vehicle before disposal.”
Kennelly partially rejected the city’s argument Santiago lacks standing to challenge the sticker notice policy, saying Velez isn’t Santiago’s legal agent, nor did Velez’s knowledge of the sticker impute to her mother. However, he agreed with the city that “had Velez not removed the sticker, Santiago likely would have seen it when she got into the car.” He also said she lacks standing to challenge the content of the notification sticker because she said she never saw the actual sticker.
He likewise said Santiago can’t challenge the city’s failure to provide a hearing before towing because even if that process existed, and if the sticker told owners of their right to a hearing, Santiago wouldn’t have known, only Velez.
Santiago also cannot pursue her unjust enrichment claim because her complaint "alleges no facts suggesting that she ever paid a fee to the City in connection with the towing and impoundment of her van,” only that the city got money for selling it to United Road Towing. And because her new van hasn’t been towed, she can’t ask the court to declare the city’s policy violates due process rights.
The judge allowed the unjust enrichment claim for the second putative class, but rejected Santiago’s contention that the city also violated Fourth Amendment protections against unreasonable seizure, as that “is limited to an individual's interest in retaining her property and cannot be invoked by the dispossessed owner to regain her property.”
Kennelly rejected Santiago’s request for injunctive relief for the vehicle disposal class, saying it would be speculative as was applied to the tow class. He also refused to issue a writ of mandamus forcing the city to send additional notice of impending disposal.
Kennelly dismissed the count of unjust enrichment for the tow class and Fourth Amendment violations for the disposal class. He did not dismiss the unjust enrichment or the Fifth Amendment claims for the disposal class, ordering the city to respond by April 26.
In the ruling, the judge also sent the remaining counts, for which Santiago could not demonstrate standing to pursue in federal court, back to Cook County court.
Santiago and the additional classes of plaintiffs are represented in the case by attorneys Jacie Zolna, Myron Cherry, Benjamin Swetland, Jeremiah Nixon and Jessica Charvin, fo the Myron Cherry firm.
The city is represented by attorneys J. David Duffy and Patrick Morales-Doyle, of the Thompson Coburn firm, of Chicago; and Jennifer Zlotow and Peter Cavanaugh, of the city's Department of Law.