Jermaine Wilson v. City of Evanston, Illinois

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 29, 2022
Decided April 20, 2023
Before
DIANE S. SYKES, Chief Judge
DAVID F. HAMILTON, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 21-2888
JERMAINE WILSON and DAMEON
SANDERS, individually and on behalf
of all others similarly situated,
Plaintiffs-Appellants,
v.
CITY OF EVANSTON, ILLINOIS,
Defendant-Appellee.
Appeal from the United States District
Court for the Northern District
of Illinois, Eastern Division.
No. 1:14-cv-08347
John Z. Lee,
Judge.
O R D E R
When an arrested person is detained for any significant length of time, police
departments face a practical problem: how to store the arrestee’s temporarily seized
property and how long to keep it. The City of Evanston, Illinois, allows arrestees to
bring some of their property into jail, but for jail safety and security reasons, valuables
and objects that might be used as weapons are seized from the arrestee and placed in
storage. Arrestees are told they have 30 days to claim their seized property or to
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 21-2888 Page 2
designate someone else to collect it. If the arrestee takes no action, the city will
eventually destroy or perhaps sell the property.
Plaintiffs here are two Evanston arrestees whose property was destroyed while
in custody. They sued alleging that the city took their property without just
compensation and violated their substantive due process rights. The district court
granted summary judgment for the city, and we affirm, following our precedents in
similar challenges to Chicago’s similar policy on arrestees’ property. The undisputed
facts show that the City of Evanston followed its policy, which gave fair warning to the
arrestees of how they could ensure that someone else could retrieve their property if
need be. In the absence of evidence of exceptional circumstances that might have made
the policy unreasonable as applied to these particular arrestees, plaintiffs’ failures to
take steps to protect their property amounted to abandonment of their seized and
stored property. The city did not violate these plaintiffs’ constitutional rights.
I. Factual and Procedural Background
In 2013, the Evanston Police Department issued an order describing how
Evanston stores and inventories the property of arrestees while they are in custody.
City of Evanston, General Order 10.1, at 14–18 (June 26, 2013). The policy is to inventory
and store valuable items, such as money and jewelry, as well as any item a detainee
could use to inflict injury or to facilitate escape. Those items are recorded on a property
receipt given to the detainee.
Evanston police officers arrested plaintiffs Jermaine Wilson and Dameon Sanders
in July 2013. Officers took from Sanders and stored two telephones, a debit card worth
$500, and public transit passes. From Wilson the officers took and stored a backpack, a
telephone, and two wedding rings. Officers then presented each with a “Prisoner
Property Receipt,” which warned:
Certain property in your possession, will not be accepted by the Cook
County Department of Corrections when you are transported to court for
your bond hearing. . . . [T]o protect your property, we have inventoried
them with our Property Bureau. You or your designee will have 30 days
from the date of your arrest to retrieve these items. If you do not retrieve
these items within the 30 days they will be disposed of as provided by
statute. THIS IS THE ONLY NOTICE YOU WILL RECEIVE ABOUT YOUR
PROPERTY.

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No. 21-2888 Page 3
The receipt/notice tells an arrestee how he may retrieve his property. An arrestee may
call to set an appointment to collect the property during business hours. An arrestee
may authorize a representative on the notice, or by calling or writing the police
department. Once the representative shows identification and a copy of the property
receipt, he or she can collect the property. The city allows more avenues. An arrestee’s
attorney may request the property or have it held. The arrestee may seek a court order
to return the property. An arrestee may also ask the city in writing to hold the property
for a longer time under “unusual circumstances.”
In April 2014, while both Wilson and Sanders were still in custody, the city
destroyed their property. Wilson and Sanders filed this suit in October 2014. The district
court certified two plaintiff classes, one for substantive due process claims and the other
for procedural due process claims. The classes included other persons arrested by the
city less than two years before suit was filed and whose property the city destroyed.
The district court granted the city summary judgment on all claims. Wilson v. City of
Evanston, 2021 WL 4439403 (N.D. Ill. Sept. 28, 2021). We review that decision de novo.
Conyers v. City of Chicago, 10 F.4th 704, 710 (7th Cir. 2021).
The plaintiffs argued in the district court that the city unlawfully deprived them
of their property and denied them due process of law. On appeal, plaintiffs have
narrowed their constitutional claims to the takings claims and substantive due process
claims.1
The undisputed facts show that the city’s policy provides sufficient notice of an
arrestee’s rights and options to retrieve his property, and the city provides sufficient
warning to arrestees of the consequences of failing to act. Absent inadequate
opportunities to retrieve the property not asserted in this case, where the city follows
1 Plaintiffs waived their Fourth Amendment and procedural due process theories they asserted
earlier in the case. Plaintiffs invoked the Fourth Amendment in their original complaint but did not clearly
invoke it in later district court proceedings, leading the district judge to conclude the theory was not in the
case. Most important, plaintiffs did not argue a Fourth Amendment theory in opposing summary
judgment, effectively waiving any such theory. They cannot resuscitate a Fourth Amendment theory on
appeal. Plaintiffs’ counsel made clear at oral argument that they are not pursuing a procedural due process
theory. In addition, the district court concluded that plaintiffs had waived their takings claims. Plaintiffs
had failed to amend their complaint again to reallege that claim after it had been dismissed for failure to
exhaust state remedies but the Supreme Court then eliminated that requirement in Knick v. Township of
Scott, 139 S. Ct. 2162 (2019). We elect to bypass the waiver issue and affirm on the merits of the takings
claim.

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No. 21-2888 Page 4
that policy and an arrestee fails to act, the arrestee abandons the seized property. We
therefore affirm the district court’s judgment.
II. The Arrestees’ Property Interests
Our decision here follows our recent decisions addressing similar constitutional
challenges to Chicago’s similar policies on arrestees’ property. See Kelley-Lomax v. City
of Chicago, 49 F.4th 1124 (7th Cir. 2022); Conyers v. City of Chicago, 10 F.4th 704 (7th Cir.
2021). In Conyers, the plaintiffs claimed that a policy of disposing of arrestees’
inventoried property after 30 days violated the Fourth and Fifth Amendments. 10 F.4th
at 706. Like the Evanston policy, the Chicago policy offered an arrestee many ways to
recover seized property and clear notice that, after 30 days, the city would dispose of
that property. Id. at 712. Chicago’s policy allowed an arrestee to authorize someone else
to claim the property. The notice spelled out the consequences for not collecting within
30 days. We affirmed judgment for Chicago. We said that “[n]othing compels the City
to hold property forever,” and we noted that “the plaintiffs failed to follow the
reclamation procedures the City offered.” Id. at 711. Chicago was “entitled to treat this
property as abandoned.” Id. at 711.
Kelley-Lomax challenged the same Chicago policy but added a substantive due
process theory. We affirmed for the same reason: “[P]roperty can be abandoned. After
that occurs the former owner lacks rights. Chicago draws the abandonment line at 30
days.” 49 F.4th at 1125, citing Conyers, 10 F.4th at 712.
The plaintiff classes rely on the experiences of plaintiffs Wilson and Sanders to
prove their claims. The undisputed facts show that both lead plaintiffs received notice
of the Evanston policy and the different ways they could have collected their property.
As in Conyers and Kelley-Lomax, the named plaintiffs here did not use any of the
available avenues to collect their seized property. Wilson requested a copy of his
property receipt, but he took no further action to reclaim his property. At relevant times
he had access to a telephone, to social workers who could help him retrieve his
property, and to the attorney representing him in his criminal case. Sanders made an
effort to collect his belongings but failed to comply with the policy. He authorized his
girlfriend to retrieve his property, but she did not follow through. Sanders asked
another friend to collect his property, but Sanders did not properly authorize his friend
to do so. After nearly nine months of minimal retrieval effort, the city finally disposed
of both named plaintiffs’ property.

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No. 21-2888 Page 5
The plaintiffs argue that Evanston must hold an arrestee’s property until the
termination of criminal proceedings. That could take many months or years. As we said
in Conyers: “Nothing compels the City to hold property forever.” 10 F.4th at 711.
Evanston could reasonably deem these arrestees to have abandoned their property by
failing to take steps to claim it. As we discuss next, the plaintiffs’ abandonment defeats
their takings and substantive due process theories.
III. Takings & Substantive Due Process
The plaintiffs argue that Evanston’s policy unconstitutionally takes arrestees’
property by disposing of it for a public purpose without just compensation. The city
could, however, consider the property abandoned: “the state can take abandoned
property without compensation—there is no owner to compensate.” Conyers 10 F.4th at
711. There was no unconstitutional taking.
Substantive due process requires a fundamental right, and property is such a
fundamental right. Kelley-Lomax, 49 F.4th at 1125. The city must hold an arrestee’s
seized property for some amount of time. It also has an interest in reducing the burden
of storing the property. That burden amounts to, by the city’s count, about 40 arrests
per month, or about 480 sets of property items per year. The city need not hold the
property forever. In the absence of unusual circumstances that might affect a particular
arrestee or group of arrestees, we see nothing unreasonable about the city’s 30-day
limit, combined as it is with several paths for an arrestee to retrieve his property. After
abandonment, the former owner lacks rights in the property, so no substantive due
process violation results. Kelley-Lomax, 49 F.4th at 1125.
Conclusion
The city need not keep the property forever, but as we said in Conyers, we can
also assume that “a statutory declaration of abandonment after only one day would be
untenable.” 10 F.4th at 711. Between one day and forever, our cases have not said where
the Constitution draws the line. Id. Here, though, the plaintiffs’ failures to take steps to
protect their property as laid out in the city’s notice add up to abandonment of the
property in question. The judgment of the district court is AFFIRMED.

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