Case: 1:12-cv Document #: 43 Filed: 11/28/12 Page 1 of 19 PageID #:406

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1 Case: 1:12-cv Document #: 43 Filed: 11/28/12 Page 1 of 19 PageID #:406 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION DAVID A. JOHNSON, et al., ) ) No. 12 C 8594 Plaintiffs, ) ) Judge John Z. Lee v. ) ) Mag. Judge Jeffrey T. Gilbert ) CITY OF CHICAGO, et al., ) ) Defendants. ) DEFENDANT CITY OF CHICAGO S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFFS AMENDED COMPLAINT INTRODUCTION AND FACTUAL BACKGROUND Plaintiffs David A. Johnson ( Johnson ), Gera Simon, Melissa Coughlin, Tommy Johnson, Preston Robinson and Lance Pisman (collectively, Plaintiffs ) are individuals who have been convicted of crimes that require them to register with the local government entity where they reside, pursuant to the Illinois Sexual Offender Registration Act ( SORA ). See Plaintiffs Amended Complaint ( Complaint or Compl. ) at Under SORA, among other things, Plaintiffs are required to register in person with the appropriate law enforcement agency where they live; to pay an initial registration fee of $100; and to re-register annually, at which time they have to pay a $100 fee as well. 730 ILCS 150/3(a), (c)(6). A sex offender residing in Illinois is also required to report in person to the appropriate law enforcement agency within three days of starting school or changing addresses, places of employment or temporary domicile. Compl. at 9; 730 ILCS 150/3(b). Pursuant to SORA, the local law enforcement agencies in charge of registering sex offenders have the discretion to grant a waiver of the registration fees if an individual is both indigent and unable to pay it. 730 ILCS 150/3(c)(6). Plaintiffs claim that failing to register under SORA carries certain

2 Case: 1:12-cv Document #: 43 Filed: 11/28/12 Page 2 of 19 PageID #:407 legal consequences such as the possibility of serving at least seven days confinement in a local county jail and a mandatory minimum fine of $500 for violating SORA. Compl. at 10; 730 ILCS 150/10(a). Plaintiffs contend that they have registered or attempted to register with the Chicago Police Department ( CPD ), the appropriate agency for sex offenders who reside in Chicago. Compl. at 9, They allege that they requested waivers of the registration fee, which CPD denied. Id. at Plaintiffs filed this lawsuit against the City of Chicago (the City ) on behalf of themselves and a putative class of sex offenders who currently reside in Chicago who are and were financially unable to pay the one hundred dollars registration fee. Id. at 53. They claim that the City has violated their due process rights and deprived them of their liberty and property interests because CPD and/or CPD s Criminal Registration Section ( CRS ) has not issued written directives setting up either procedures for waivers of the SORA registration fees based on an individual s claimed indigence and inability to pay, or procedures to contest the SORA fees once they have been levied. Id. at Plaintiff Melissa Coughlin is also asserting a Fourth Amendment claim against Police Officer Eddie Chapman in his individual capacity for allegedly violating Coughlin s privacy 1 and right to dignity. Id. at 6, Plaintiffs seek damages, a declaratory judgment, as well as a mandatory injunction to require the City of Chicago to adopt a procedure through which residents may apply for a SORA fee waiver. Id. at pp (Prayer for relief). Plaintiffs also twice sought a TRO requesting that the 1 To the undersigned counsel s knowledge, Defendant Police Officer Eddie Chapman has not yet been served with a summons and complaint, and therefore, he cannot answer or otherwise plead to the Amended Complaint at this time. The City moves to dismiss the Fourth Amendment claim out of an abundance of caution because it is not clear whether this claim is against Defendant Officer Eddie Chapman alone, or the City as well. 2

3 Case: 1:12-cv Document #: 43 Filed: 11/28/12 Page 3 of 19 PageID #:408 Court waive all fees for any sex offender claiming that he or she was indigent and unable to pay the registration fee during the pendency of this case. The Court denied both of these motions on November 6 and November 8, Plaintiffs still have pending a motion for a preliminary injunction, for which the Court set an expedited schedule for discovery and a hearing date of January 25, As explained more fully below, the Court should dismiss Plaintiffs Complaint in its entirety. First, the Court lacks jurisdiction to even entertain Plaintiffs requests for permanent and preliminary injunctive relief. The Plaintiffs lack standing for an injunction requiring the City to issue fee waiver procedures because they cannot allege that they will immediately be harmed, as they cannot claim that they are reasonably likely to be denied a fee waiver. This is especially so because since this lawsuit was filed, CPD has issued new, enhanced procedures regarding the fee waiver, including a new application form, under which Plaintiffs have not been denied any fee waiver requests. In fact, yesterday, on November 20, 2012, Plaintiff Johnson received a fee waiver under the new procedures. But even if the Court finds that Plaintiffs have standing, their claim for injunctive relief is nevertheless moot. Because Plaintiffs are requesting that the Court issue an order requiring that CPD put in place written procedures, and as set forth below, CPD already has issued written procedures since Plaintiffs filed this lawsuit, they cannot state an actual case or controversy over which this Court has jurisdiction. Thus, the Court lacks jurisdiction and should dismiss Plaintiffs injunctive relief claim under Fed. R. Civ. P. 12(b)(1). If the Court finds it lacks jurisdiction over Plaintiffs injunctive relief claim, it should also strike the motion for preliminary injunction. Moreover, Plaintiffs due process and Fourth Amendment claims should be dismissed for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). As set forth below, Plaintiffs cannot 3

4 Case: 1:12-cv Document #: 43 Filed: 11/28/12 Page 4 of 19 PageID #:409 allege that the City deprived them of either a liberty or property interest. Even if they can allege a deprivation, their due process claim still fails because, as a matter of law, they have received all the process to which they are entitled. Finally, Plaintiff Coughlin s Fourth Amendment claim should be dismissed for failure to allege either an unreasonable search or seizure. LEGAL STANDARDS A Rule 12(b)(1) motion seeks dismissal of claims over which the federal court lacks subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). In considering a Rule 12(b)(1) motion, courts accept a complaint s well-pled factual allegations as true and must draw reasonable inferences from those allegations in the plaintiff s favor. See Rueth v. EPA, 13 F.3d 227, 229 (7th Cir.1993). Courts may, however, look beyond the complaint and consider other evidence to determine whether jurisdiction exists. See United Transportation Union v. Gateway Western Railway Co., 78 F.3d 1208, 1210 (7th Cir.1996). Plaintiffs facing a Rule 12(b)(1) motion bear the burden of establishing jurisdiction. See Kontos v. United States Department of Labor, 826 F.2d 573, 576 (7th Cir.1987). A Rule 12(b)(6) motion tests the legal sufficiency of a complaint. Fed. R. Civ. P. 12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir.1990). When considering a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well-pled allegations, construing all such allegations in the light most favorable to the plaintiff, and drawing all reasonable inferences in favor of the plaintiff. Gibson, 910 F.2d at ARGUMENT I. The Court Lacks Jurisdiction Over Plaintiffs Claim for Injunctive Relief. A. Plaintiffs Lack Standing to Assert a Claim for Injunctive Relief. Plaintiffs claim for injunctive relief against the City fails because Plaintiffs lack standing 4

5 Case: 1:12-cv Document #: 43 Filed: 11/28/12 Page 5 of 19 PageID #:410 to obtain injunctive relief. A plaintiff is required to demonstrate standing for each form of relief sought. See Friends of the Earth v. Laidlaw Environmental Servs., 528 U.S. 167, 185 (2000). Thus, even assuming Plaintiffs have standing for their damages claim for alleged past illegal conduct by the City, that is insufficient to confer standing for prospective injunctive relief. Standing requires a plaintiff to establish that (1) he or she has suffered an injury in fact; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, rather than merely speculative, that a decision in the plaintiff s favor would redress that injury. See, e.g., Friends of the Earth, 528 U.S. at (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, (1992)). The general rule regarding standing for injunctive relief requires that a plaintiff demonstrate that he or she has sustained or is immediately in danger of sustaining some direct injury as the result of the challenged official conduct and the injury or threat of injury must be both real and immediate, not conjectural or hypothetical. City of Los Angeles v. Lyons, 461 U.S. 95, (1983) (citations omitted). Moreover, a plaintiffs reliance on past alleged constitutional violations is simply not enough for standing because [p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief, however, if unaccompanied by any continuing, present adverse effects. O Shea v. Littleton, 414 U.S. 488, (1974). Countless cases in the Supreme Court and Seventh Circuit have held that prior exposure to illegal conduct is insufficient to establish standing for equitable relief. See, e.g., Lyons, 461 U.S. at 111 (finding no standing for injunctive relief where plaintiff failed to show it was likely that he would be arrested and subjected to a choke hold again); O Shea v. Littleton, 414 U.S. at (finding no standing for injunctive relief where allegations were speculative based on past discriminatory enforcement of criminal law); Sierakowski v. Ryan, 223 F.3d 440, (7th Cir. 2000) (where statute allowed 5

6 Case: 1:12-cv Document #: 43 Filed: 11/28/12 Page 6 of 19 PageID #:411 a physician the discretion to test patient for HIV without their knowledge or consent, prospects of future testing were too speculative for injunctive relief); Knox v. McGinnis, 998 F.2d 1405, (7th Cir. 1993) (finding prisoner who complained about restraints used while he was in the segregation unit lacked standing for injunctive relief because he was no longer in the segregation unit, even though the possibility existed that he would return to the unit someday). Here, Plaintiffs Complaint fails to allege any real and immediate likelihood that their waiver requests are reasonably likely to be denied. Instead, the Complaint merely describes alleged past general practices of CPD. For example, Plaintiffs allege that [p]rior to October 26, 2012 the CPD and/or the office of criminal registration section (CRS) had not issued a general order or any other written directive to set up procedures for either a pre-deprivation and/or post-deprivation process for sex offenders seeking a SROA [sic] waiver based on indigence and inability to pay. Compl. at 12 (emphasis added). Plaintiffs allege nothing about CPD s current practices. As this Court is aware, CPD s procedures for handling registration fee waiver requests were set forth in Sergeant Jones Declaration submitted as Exhibit 1 to the City s Opposition to Plaintiffs Motion for Temporary Restraining Order. See Declaration of Sergeant Phillip G. Jones, Ex. 1 hereto. Sergeant Jones explained that CPD has a procedure in place for considering waiver requests, Jones Decl. at 6-7, and has also adopted new, enhanced mechanisms for doing so, including keeping a written record of the request and disposition, including the bases, the evidence considered, and whether or not the waiver was granted, id. at 8. In addition, since this lawsuit was filed, CPD has issued two memoranda memorializing CPD s customary practices and enhanced procedures regarding fee waiver requests, as well as a new application form for fee waivers ( Waiver Application ). See Second Declaration of Phillip G. Jones ( Jones 2nd Decl. ) at 4-7, Ex. 2 hereto. Thus, none of 6

7 Case: 1:12-cv Document #: 43 Filed: 11/28/12 Page 7 of 19 PageID #:412 the Plaintiffs can claim an immediate threat of a denial of a fee waiver because many of the procedures are new and any allegation of a denial of a future waiver request is purely speculative. Moreover, none of the individual Plaintiffs allegations of injury for purposes of prospective injunctive relief amount to anything more than mere conjecture. Plaintiff David Johnson alleges in his Complaint that he paid the $100 registration fee on November 15, Compl. 16. He further claims that he was indigent as of October 2012 and sought to register his new employment with CPD on October 9, Id. at 19. Johnson contends that at that time Police Officer Chapman would not register him (but does not claim that he requested a waiver) and that he requested a waiver from Sgt. Jones the next day, and Sgt. Jones made a notation that Johnson s fee would not be waived. Id. at 19, Johnson claims that he has until November 15, 2012 to pay his registration fee and that [i]t is highly unlikely that he will have the necessary funds. Id. at 23 (emphasis added). Johnson s claim for injunctive relief is clearly speculative, however, because just yesterday, on November 20, 2012, CRS granted a fee waiver to Johnson pursuant to the new, enhanced procedures implemented by CPD. Johnson went to CRS on the morning of November 20, 2012 to register a change of employment, at which time his $100 re-registration fee was due under SORA. See Jones 2nd Decl. at 8. Under the new procedures, the registering official gave Johnson a Waiver Application, which Johnson was instructed to complete in its entirety and return it with verifying documents. Id. Johnson left the office to obtain the documents from his lawyer, who Johnson said was waiting outside of the CRS office. Id. When Johnson returned with his completed Waiver Application and supporting documents, the registering official required Johnson to sign and date all of his supporting documents, reviewed the application and granted the fee waiver. Id. at 7

8 Case: 1:12-cv Document #: 43 Filed: 11/28/12 Page 8 of 19 PageID #: Pursuant to SORA, Johnson is not required to pay another $100 registration fee until November 20, Id. Plaintiff Gera Simon alleges that he paid the $100 fee last year through support from his religious congregation, that it is highly unlikely that he will have the $100 to register when his fee is due on December 13, 2012, and that he is unaware of any procedures to contest the $100 fee that he expects CPD to levy against him. Id. at (emphasis added). Johnson and Simon are the only two Plaintiffs who even try to allege anything about their 2 future attempts to register. But, Johnson cannot possibly claim at this point that he is in immediate threat of having his waiver denied because it was granted just yesterday, and he is proof that the enhanced procedures CRS put in place will provide a process for evaluating fee waiver requests. Plaintiff Simon, who has never been subject to the new CRS waiver procedures, merely alleges that it is highly unlikely that he will have the money to pay his fee when it comes due. He makes no allegations that it is reasonably certain that he will be denied a waiver, nor could he, as any attempt to do so would be completely speculative because (a) reliance on past exposure to alleged illegal conduct is insufficient to confer standing for injunctive relief and (b) CPD has instituted new 2 The remaining four Plaintiffs claim as follows: Plaintiff Melissa Coughlin alleges that in July 2012 someone from CPD told her in a phone call that CPD had no waiver process, that failure to pay the fee was grounds for arrest, and that she received a waiver of the fee in July 2012 without any inquiry into her finances. Compl. at Plaintiff Tommy Johnson alleges that he was arrested in March 2012 on suspicion of gambling and later charged with violating SORA because he was unable to register, as CPD did not grant him a waiver. Id. at He is currently in Cook County Jail awaiting trial on the SORA violation. Id. at Plaintiff Lance Pisman claims that in August 2012 he was denied a fee waiver by a CPD officer and later by Sgt. Jones, but was able to pay the next day by borrowing $100 from his family. Id. at Plaintiff Preston Robinson contends that in January 2012 he attempted to register by paying a portion of the fee, but the CPD officer would not register him without the full amount, nor was there a log book to document Robinson s attempted registration. Id. at 50. Several months later, in June 2012, Robinson s home was raided by law enforcement and he has been incarcerated in Cook County Jail awaiting trial for a violation of SORA. Id. at

9 Case: 1:12-cv Document #: 43 Filed: 11/28/12 Page 9 of 19 PageID #:414 procedures for waiver since Plaintiffs filed their lawsuit. Although Plaintiffs may claim a subjective, speculative fear of a denial of their fee waiver requests because the City denied their waiver requests in the past, [i]t is the reality of the threat of repeated injury that is relevant to the standing inquiry, not the plaintiff s subjective apprehensions. Lyons, 461 U.S. at 107 n.8 (emphasis in original). And the reality here is that Plaintiffs apprehension based on past experience is speculative, especially because Johnson received a waiver and the new procedures have never been applied to Simon. In addition, Plaintiffs cannot base standing on the existence of the City s alleged inadequate procedures alone without alleging they are personally in immediate danger of being injured. In Datamatic Services, Inc. v. United States, 909 F.2d 1029, 1035 (7th Cir. 1990), the plaintiff, charged with a penalty by the Internal Revenue Service, alleged that the federal government violated its due process rights by failing to provide sufficient information on how to prepare a claim for a refund. The Seventh Circuit found that the plaintiff lacked standing for this claim because the plaintiff failed to allege how it was harmed by these alleged deficiencies. Id. Similarly, in Egan v. Davis, 118 F.3d 1148, 1149 (7th Cir. 1997), the plaintiffs were public aid recipients who sought to enjoin regulations which allowed the government to appeal an administrative decision favoring the recipients. The court found that because plaintiffs merely dread[ed] the prospect of unwelcome appeals and the reversal of favorable decisions, but it was uncertain whether they would ever have to even appear before an administrative law judge, the plaintiffs lacked standing for injunctive relief. Id. at See also Oriental Health Spa v. City of Fort Wayne, 864 F.2d 486, (7th Cir. 1988) (plaintiff lacked standing to challenge ordinance under due process clause where it could not demonstrate a 9

10 Case: 1:12-cv Document #: 43 Filed: 11/28/12 Page 10 of 19 PageID #:415 threat that it would not obtain a business license). 3 In the instant case, because Plaintiffs do not allege any facts that would rise to the level of an immediate injury and because they are relying entirely on their claim that the City s procedures for granting a waiver are inadequate, they lack a sufficient basis for standing, and this claim should be dismissed. Because standing is a threshold requirement for jurisdiction in federal court, see, e.g., Lyons, 461 U.S. at 101, and because Plaintiffs lack standing for permanent injunctive relief, they also cannot obtain a preliminary injunction. Therefore, the Court also should strike the hearing on Plaintiffs pending motion for a preliminary injunction. B. Even if the Plaintiffs Have Standing, Their Claim for Injunctive Relief is Moot. A mandatory injunction requiring the defendant to perform an affirmative act is a particularly intrusive form of equitable relief that is sparingly issued. Kartman v. State Farm Mut. Auto Ins. Co., 634 F.3d 883, 892 (7th Cir. 2011); U.S. v. Midwest Generation, LLC, 781 F. Supp. 2d 677, 686 (N.D. Ill. 2011). Plaintiffs seek a mandatory injunction to require the City to adopt a procedure through which residents may apply for a SORA fee waiver. Compl. at p. 11 (Prayer for relief). The City has done just that. Because CRS has now issued two memoranda memorializing their procedures as well as the Waiver Application, if the Court finds that Plaintiffs had standing for injunctive relief, their claim to enjoin the City s practices and procedures is now moot. As with standing, Article III of the Constitution requires that a claim that does not concern an actual, ongoing controversy is moot and must be dismissed for lack of jurisdiction. See Federation of Advertising Industry Representatives, Inc. v. City of Chicago, 326 F.3d 924, 929 (7th 3 The Supreme Court has also found that if there is no immediate threat of injury for purposes of standing, a plaintiff cannot satisfy the injunction element of irreparable harm. See O Shea, 414 U.S. at 502; Lyons, 461 U.S. at

11 Case: 1:12-cv Document #: 43 Filed: 11/28/12 Page 11 of 19 PageID #:416 Cir. 2003). Although in general the voluntary cessation of challenged activities is insufficient to render a claim for injunctive relief moot, when the party ceasing or modifying their actions is a government entity, the courts presume that the government is acting in good faith and that the acts will not be repeated. See Chicago United Industries, Ltd. v. City of Chicago, 445 F.3d 940, (7th Cir. 2006); Federation, 326 F.3d at As set forth above, since Plaintiffs filed this case, the City has implemented several additional procedures and documented them in writing. Specifically, Sergeant Jones Second Declaration confirms that CPD has implemented the Waiver Application form as promised in his first declaration (Jones Decl. at 9), and as the commanding officer of CRS, he has issued two memoranda reminding his staff of how to evaluate a request for a fee waiver and describing the newly enhanced procedures. Jones 2nd Decl. at 4-7. Thus, the factual landscape has changed from when Plaintiffs first filed their case. A federal court lacks the power to decide an unnecessary question that cannot affect the rights of the litigants before it. Rembert v. Sheahan, 62 F.3d 937, 940 (7th Cir. 1995). Plaintiffs request for a mandatory injunction requiring procedures for fee waivers falls into this category of unnecessary questions; this claim is moot and should be dismissed for lack of jurisdiction. II. Plaintiffs Fail to State a Claim Upon Which Relief Can Be Granted. Plaintiffs Complaint also fails in its entirety because Plaintiffs fail to state a due process claim against the City, and because Plaintiff Coughlin fails to allege a Fourth Amendment violation against Officer Chapman. For the reasons set forth below, the Court should dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(6). A. Plaintiffs Fail to State a Due Process Claim. The gravamen of Plaintiffs complaint is that CPD has failed to put in place procedures for 11

12 Case: 1:12-cv Document #: 43 Filed: 11/28/12 Page 12 of 19 PageID #:417 determining whether the registration fee of SORA should be waived in individual circumstances according to the financial circumstances of the applicant. See Compl. at Plaintiffs allege that such procedures must provide for some pre-deprivation and post-deprivation procedure and that the lack of such procedures constitutes a violation of due process. Id. For the reasons set forth below, Plaintiffs allegations fail to state a due process claim. 1. The Elements of a Procedural Due Process Claim Procedural due process claims require a two-step analysis. The first step requires us to determine whether the plaintiff has been deprived of a protected interest; the second requires a th determination of what process is due. Doherty v. City of Chicago, 75 F.3d 318, 322 (7 Cir. 1996) (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982)). The protected interest at stake can be either a property or liberty interest, but it must be based on more than a unilateral expectation that one is entitled to it. Board of Regents v. Roth, 408 U.S. 564, 577 (1972). Courts have rejected any difference in analysis between a deprivation of a property interest versus a deprivation of a liberty interest. See Zinermon v. Burch, 494 U.S. 113, 132 (1990). Due process, the Supreme Court has repeatedly written, is a flexible concept that varies with the particular situation. Doherty, 75 F.3d at 323 (citing Zinermon at 127). An essential principle of due process is that a deprivation of life, liberty, or property be preceded by notice and opportunity for hearing appropriate to the nature of the case. Cleveland Bd. Of Education v. Loudermill, 470 U.S. 532, 542 (1985) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)). Plaintiffs here fail to set forth a procedural due process claim because: (1) Plaintiffs do not have a property interest in the waiver of the SORA registration fee and therefore they have suffered 12

13 Case: 1:12-cv Document #: 43 Filed: 11/28/12 Page 13 of 19 PageID #:418 no constitutional deprivation; and (2) to the extent that Plaintiffs have a liberty interest that is implicated by the requirement to register under SORA, Plaintiffs have a procedural pre-deprivation remedy available to them to contest the failure to grant a waiver, in the form of a state law writ of certiorari, which is all the process that is owed them. Each of these grounds is discussed below. 2. Plaintiffs Have No Property Interest in the Waiver of the Fee. First, Plaintiffs cannot have a property interest in the registration fee itself because they have not actually used any of their own money to pay the fee. In fact, Plaintiffs allege that they were unable to pay the fee because they were indigent. See Compl. 53 ( Plaintiffs bring this suit individually and for all registered sex offenders who currently live in Chicago who are and were 4 financially unable to pay the one hundred dollars registration fee. ). Rather, instead of alleging a property interest in the payment of the fee, Plaintiffs appear to claim they have a property interest in the waiver of the fee. It is clear, however, that Plaintiffs claim to an interest in the waiver of the fee does not rise to the level of a constitutionally-protected property interest, but is more a unilateral expectation in receiving a benefit, which the Supreme Court in Roth, 408 U.S. at 577, rejected as a basis for a property interest. th Indeed, in Reed v. Village of Shorewood, 704 F.2d 943, 948 (7 Cir. 1983), the court stated that a property interest is what is securely and durably yours under state... law as distinct from what you hold subject to so many conditions as to make your interest meager, transitory, or 4 For this reason, Plaintiffs citation to Roehl v. City of Naperville, 857 F.Supp.2d 707 (N.D. Ill. 2012) (Mag. J. Schenkier) does not help them. See Plaintiffs Memorandum In Support of Plaintiffs Motion For A Temporary Restraining Order at 7. Roehl dealt with a municipal ordinance which authorized the police department to charge an automatic $50 booking fee for everyone who was arrested. In Roehl, unlike here, the plaintiff had already paid the booking fee and, as the court stated, the law is clear that individuals have a property interest in their own money. Id. at

14 Case: 1:12-cv Document #: 43 Filed: 11/28/12 Page 14 of 19 PageID #:419 uncertain. The tenuous and insubstantial nature of the interest that Plaintiffs have in a waiver of the registration fee is evident from the language of the applicable SORA provision: The law enforcement agency [here, CPD]... may waive the registration fee if it determines that the person is indigent and unable to pay the registration fee. 730 ILCS 150/3(c)(6) (italics added). The may waive language makes it clear that Plaintiffs do not have an interest in the waiver that is securely and durably theirs, but is rather dependent on the discretion of the law enforcement agency, here CPD. Thus, Plaintiffs claim that they have a protectable property interest fails. 3. Plaintiffs Liberty Interest Is Protected By A Pre-Deprivation Remedy Plaintiffs also allege that they have a liberty interest at stake in the waiver of the registration fee because if they fail to register they may become subject to the penalty provisions of SORA which provide, in part, that an individual in violation of the Act may be required to serve a minimum period of 7 days confinement in the local county jail. Compl. 10; SORA, 730 ILCS 150/10(a). However, CPD s denial of a request for a waiver of the registration fee does not directly result in an arrest or loss of liberty. The registration provision, 730 ILCS 150/3, does not provide that the local law enforcement agency in charge of registration must, upon failure to register, arrest the individual for failure to register. Admittedly, SORA s penalty provision, 730 ILCS 150/10, as stated above, does provide that an individual who violates a provision of SORA can be arrested and ultimately jailed for a minimum of 7 days. Assuming arguendo, for purposes of this motion only, that the SORA penalty provision implicates a liberty interest, that interest is nonetheless protected by a predeprivation remedy - - a state law writ of certiorari of CPD s denial of the waiver request. In Illinois, a party disappointed in a determination made by a municipality s administrative agency may seek review in the circuit court by common law writ of certiorari. Holstein v. City of 14

15 Case: 1:12-cv Document #: 43 Filed: 11/28/12 Page 15 of 19 PageID #:420 th th Chicago, 29 F.3d 1145, 1148 (7 Cir. 1994) (citing Graff v. City of Chicago, 9 F.3d 1309, 1325 (7 Cir.1993)). In fact, in Graff, the Seventh Circuit emphasized that the writ of certiorari is extremely broad in scope, and extends to all questions of fact and law contained in the record before the court including de novo review of any constitutional issues. Graff, 9 F.3d at 1325 (quoting Holstein v. City of Chicago, 803 F. Supp. 205, 210 (N.D. Ill. 1992)). Numerous cases have held that both the writ of certiorari and Illinois administrative review appeal procedures are adequate as even post-deprivation remedies that satisfy due process. See Graff, 9 F.3d at 1325 (City s refusal to grant newsstand permit); Holstein, 29 F.3d at 1148 (certiorari remedy provided by the state of Illinois comport[s] with procedural due process ); Veterans Legal th Defense Fund v. Schwartz, 330 F.3d 937, 941 (7 Cir. 2003) (availability of administrative review remedy for state s alleged deprivation of civil-service hiring preference); Stachowski v. Town of th Cicero, 425 F.3d 1075, 1078 (7 Cir. 2005) (availability of administrative review remedy to challenge termination of salary and benefits). In the foregoing cases, the courts decided that, even though a pre-deprivation hearing was not required in the circumstances present in those cases, the post-deprivation remedies of a writ of certiorari or administrative review were adequate to satisfy due process concerns. Here, of course, the availability of a writ of certiorari would constitute an even stronger due process protection because it would be a pre-deprivation remedy: the applicant can file an immediate or emergency writ of certiorari in state court to challenge the denial of waiver prior to any loss of liberty. This is all the process that an applicant who has been denied a waiver of the registration fee can expect and all 15

16 Case: 1:12-cv Document #: 43 Filed: 11/28/12 Page 16 of 19 PageID #:421 5 the process that is constitutionally owed. See Brock v. Roadway Exp., 481 U.S. 252, (1987) (noting that there is no due process violation where there is the opportunity for some kind of hearing ensuring an effective initial check against mistaken decisions [that] is provided before the deprivation occurs and a prompt opportunity for complete administrative and judicial review is available. ); Matthews v. Eldridge, 424 U.S. 319, 333 (1976) ( [t]he fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner ). However, the Plaintiffs who allege that they have been deprived of their liberty and are under arrest (see, e.g., Compl. 42 & 52) do not allege that they ever availed themselves of this predeprivation remedy. This bars their due process claim. As the Seventh Circuit has remarked, we do not allow a plaintiff to claim that she was denied due process just because she chose not to pursue remedies that were adequate. Veterans Legal Def. Fund, 330 F.3d at 94; see also Stachowski, 425 F.3d at Accordingly, Plaintiffs claims based on past due process violations should be dismissed. 6 B. Coughlin s Fourth Amendment Claim Should be Dismissed. The only Fourth Amendment claim is Plaintiff Melissa Coughlin s allegations that Officer Chapman misused his office to invade Plaintiff Coughlin s privacy and deprived Plaintiff Coughlin 5 In addition, an applicant who is arrested for a violation of SORA would have several postdeprivation remedies as well in the form of a probable cause hearing, a bail hearing, or a trial. See Guenther th v. Holmgreen, 738 F.2d 879, 885 (7 Cir. 1984) (plaintiff s 1983 claim denied because he had opportunity to litigate his due process claim at state criminal preliminary hearing in connection with his arrest). 6 Although Plaintiffs complaint does not specify whether their claims are based on procedural due process or substantive due process, or both, it matters little because Plaintiffs failure to allege an impairment to either a property or liberty interest without due process is fatal to both a procedural as well as a substantive th due process claim. See Jeffries v. Turkey Run Consol. School Dist., 492 F.2d 1, 4 & n. 8 (7 Cir. 1974) ( Certainly the constitutional right to substantive due process is no greater than the right to procedural due process. ). 16

17 Case: 1:12-cv Document #: 43 Filed: 11/28/12 Page 17 of 19 PageID #:422 of her Fourth Amendment right to dignity. Compl. at 35. Specifically, Coughlin alleges that in July 2012 she went to CPD headquarters to complete her registration, at which time Officer Chapman asked her for her identification and the $100 registration fee. Id. at 31. She further claims that although Officer Chapman did not ask Coughlin any questions regarding her finances, he told her that he would waive her fee. Id. Then, Officer Chapman allegedly asked Coughlin if he could call her later, which she agreed to. Id. at 32. Coughlin contends that she saw Officer Chapman put her personal information from the registration form she filled out into his cell phone. Id. She claims that shortly after leaving CPD headquarters, Officer Chapman called her from a CPDissued phone number and asked Coughlin for a date and also requested that she take sexually explicit photographs of herself. Id. at 33. Coughlin claims that based on this occurrence, Officer Chapman and/or the City violated her Fourth Amendment right to dignity. Id. at 35. The Fourth Amendment protects against unreasonable searches and seizures. U.S. Const. amend. IV. Plaintiff does not allege whether she is claiming an invalid search or seizure, and her claim can be dismissed on this basis alone. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (stating that a complaint must contain more than labels and conclusions or a formulaic recitation of the elements of a cause of action. ) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To the extent Coughlin is claiming an unreasonable search by Officer Chapman, this claim should fail. A search under the Fourth Amendment occurs when the government violates a subjective expectation of privacy that society recognizes is reasonable. Kyllo v. United States, 533 U.S. 27, 33 (2001). Here, Coughlin alleges that CPD s sex offender registration form requested her telephone number, which she provided. Compl. at 32. Thus, because Coughlin was required to provide her phone number to Officer Chapman, she had no expectation of privacy and Officer Chapman could 17

18 Case: 1:12-cv Document #: 43 Filed: 11/28/12 Page 18 of 19 PageID #:423 not have unlawfully obtained it. If Coughlin is claiming an unreasonable seizure by Officer Chapman, she similarly fails to state a claim. A seizure triggering the Fourth Amendment s protections occurs only when government actors have, by means of physical force or show of authority,... in some way restrained the liberty of a citizen. Graham v. Connor, 490 U.S. 386, 395 n.10 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)). Coughlin s allegations fail to meet the definition of a seizure. Although Coughlin claims a fear of the CPD registration process because Officer Chapman continues to work there, she does not allege that she was restrained in any way by Officer Chapman. Because Plaintiff Coughlin fails to state a Fourth Amendment claim against Officer Chapman and/or the City which is plausible on its face, her claim should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6). Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). CONCLUSION For the reasons stated above and in its Motion to Dismiss, the City respectfully requests that this Court: (1) dismiss Plaintiffs Complaint in its entirety pursuant to Fed. R. Civ. P. 12(b)(6); (2) in the alternative, dismiss Plaintiffs injunctive relief claim for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1); and (3) grant such further relief this Court deems appropriate. Dated: November 28, 2012 Andrew S. Mine Respectfully submitted, Rachel D. Powell City of Chicago Dept. of Law Stephen R. Patton, Corporation Counsel 30 N. LaSalle St., Suite 1230 for the City of Chicago Chicago, Illinois / By: /s/rachel D. Powell Assistant Corporation Counsel 18

19 Case: 1:12-cv Document #: 43 Filed: 11/28/12 Page 19 of 19 PageID #:424 CERTIFICATE OF SERVICE I, Rachel D. Powell, an attorney, certify that on this 28th day of November, 2012, I caused the foregoing Defendant City of Chicago s Memorandum of Law in Support of Its Motion to Dismiss Plaintiffs Amended Complaint to be served by electronic case filing (ECF) on the following counsel: Thomas G. Morrissey, Esq. (tgmlaw@ameritech.net) Patrick W. Morrissey, Esq. (patrickmorrissey1920@gmail.com) Thomas G. Morrissey, Ltd S. Western Avenue Chicago, IL /s/ Rachel D. Powell