A federal judge has refused, for now, to allow people whose cars were impounded by the city of Chicago to continue their class action against the city over its vehicle impound practices.
In April 2019, attorneys with the Washington, D.C.-based civil rights legal organization Institute for Justice and attorney Robert Pavich, of Chicago, filed a class action complaint in Cook County Circuit Court, asserting the city’s vehicle impound program is unconstitutional and violates the rights of those caught up in it.
On Feb. 13, Judge Lindsay Jenkins filed an opinion denying class certification, agreeing with the city the plaintiffs lack the standing to seek a court order and injunction.
“The City of Chicago impounds tens of thousands of cars each year, holding them until owners pay a compilation of fines and fees, both before and after the entry of final judgment,” the lawsuit says. “Owners find themselves in a labyrinthine impound system that is plagued by serious procedural flaws. Even innocent owners get caught up in this system, facing hefty fines and fees when someone else used their car to commit a crime without the car owner’s knowledge.”
Whereas the city argued the plaintiffs failed to show a “real and immediate threat” their cars might be impounded as a result of use in illegal activity, Jenkins wrote the obstacle is showing a risk their cars might be impounded for any reason in a manner that sets them apart from any other vehicle owner.
“The Court does not doubt that plaintiffs face a risk of impoundment today, perhaps the same level of risk they faced before the city seized their cars, but that does not confer standing,” Jenkins wrote. “Adolph Lyons faced a risk of being stopped for a traffic violation and placed in a chokehold before Oct. 6, 1976, and he continued to face such a risk afterward, but the Supreme Court held that he lacked standing to seek an injunction.”
Jenkins noted the allegation of tens of thousands of annual impoundments, but said that figure needs to be held in the context of the number of vehicles in the city, and furthermore said “standing requires a ‘real and immediate threat of future injury,’ not a “conjectural or hypothetical’ one. Given the evidence in the record, the court can do no more than speculate about the risk that plaintiffs’ cars might be impounded in the future.”
One named plaintiff, Lewrance Gant, said he got letters from the city in January 2023 threatening a second impoundment and further penalties. But Jenkins agreed with the city’s position that evidence alone doesn’t support the argument an entire certified class of litigants faces a similar risk. Past harms, Jenkins wrote, could be addressed with retrospective damages, but absent threat of future injury, it would be improper to certify a class to pursue an injunction.
However, Jenkins said, the plaintiffs might have another path to certification. She granted leave for them to do so, but first explained plaintiff Spencer Byrd is not a suitable class representative because his claims stem from a 2016 impoundment and thus are time-barred. Similarly affected are the state law claims of plaintiff Allie Nelson.
Jenkins rejected the city’s arguments the challenge to the validity of its ordinance is improperly brought on a class basis. Even though she earlier read a complaint as challenging only how the city applies its ordinance, “the court reconsiders that ruling in light of subsequent developments” she wrote, adding “plaintiffs may attempt to certify a class on both their as-applied and facial due process challenges to the ordinance.”
She further said the city failed to show the nature of plaintiffs’ proportionate penalties claim doesn’t allow for certification on the basis of commonality. The questions are to the legality of the city ordinance, Jenkins said, “irrespective of individual circumstances.” She further noted the specifics of how individual vehicles were seized are irrelevant to arguments that every impoundment violated either state law or federal due process protections.
Jenkins said a future motion for certification also should explain why lawyers from the Pavich Law Group deserves to be appointed class counsel along with the Institute for Justice, and stressed she isn’t deciding whether certification is viable under a different legal approach, only hoping “to avoid rehashing the same points if plaintiffs move for class certification again and to give the parties the opportunity to sharpen their arguments in future briefing. It remains plaintiffs’ burden to show, based on record evidence, that they meet each Rule 23 requirement.”
The Institute for Justice did not respond to a request for comment.