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A lawsuit brought by two individuals arrested by the Evanston Police Department will be allowed to proceed as a class action under an opinion and order issued Aug. 30. The lawsuit alleges that the EPD improperly destroyed the personal property of arrestees; class action status permits plaintiffs to bring the action on behalf of at least 39 other individuals, and perhaps significantly more, according to the judge’s decision.

The lawsuit arose out of a change to the EPD’s policy regarding personal property collected from persons arrested by the department and then transferred to the Cook County jail to await trial or other disposition. The policy, changed in 2012, permitted an arrestee to authorize a third party to retrieve personal property. But the policy shortened the time for retrieval from 90 days to 30 days.

The two current plaintiffs were both arrested in 2013, and then transferred to Cook County jail. Both remained in custody for more than 30 days, and the EPD destroyed their personal property when it was not retrieved under the revised policy.

The lawsuit alleges the EPD violated the federal civil right law commonly known as “Section 1983.” The court noted at least 39 plaintiffs could be added because “the City has admitted that it disposed of property retained on behalf of thirty-nine arrestees, all of whom were held in Cook County custody for over thirty days. Moreover, this class is also likely larger than thirty-nine, because the City admits EPD disposed of property retained on behalf of additional persons who were arrested and held in custody, but were transferred to other institutions, such as a State facility.”

According to the lawsuit and the court’s order, the EPD policy contradicted an Evanston ordinance. Under the ordinance, “If property seized… shall not be claimed by the rightful owners thereof… within 60 days from the final disposition of the court proceedings in connection with which such property was seized… the custodian of lost and stolen property may sell such property at a public auction.”
The City argued the ordinance did not apply, and therefore the 30- and 60- day timeframes were not contradictory. In response, the judge’s order ruled, “This argument plainly misunderstands the nature of the Rule 23 [class action] inquiry” because at the class action certification stage “it is not the Court’s task… to determine whether their claims are plausible or will succeed. Rather, the court at this point only looks to see whether there is a class of individuals with similar claims, and whether those claims would be more efficiently addressed in a class setting.”

The City also took issue with the plaintiff’s complaint referencing the “conclusion” of court proceedings rather than the “final disposition” phrasing used in the Evanston ordinance. The court dismissed the City’s argument, though, ruling, “even if ‘conclusion of court proceedings’ is vague, it is somewhat disingenuous for the City to raise such an argument, given the class definition draws the phrase from the City’s own ordinance.”

The court’s order goes on to expand the class definition to include individuals who had their cases dismissed as well as those for whom a court issued a “final disposition” after trial or appeal.

After the court’s ruling, the case will now proceed as a class action. It remains to be seen how many people will be represented as members of the class. The case was filed in 2014 and only now, after amendments to the complaint, City motions to dismiss, and the class certification argument and decision, will it proceed to the merits of the case.

More motions are in the offing, as the judge’s order makes clear the City may now pursue a motion to dismiss or a summary judgment motion arguing the “lost and stolen” property ordinance does not apply to possessions retained by the EPD after individuals are arrested and transferred out of Evanston to the Cook County jail.

On the surface, the City’s exposure may appear to be minimal. As the court notes in its order, “the value of the personal property of some class members will undoubtedly be very low…” However, under Section 1983, a successful plaintiff is also entitled to reasonable attorneys’ fees. This case has already generated three years’ worth of legal fees, and it is just now entering the class phase. As with many other class action cases, the true exposure may be the plaintiffs’ attorney fees incurred in bringing the action.

The RoundTable spoke with several aldermen, none of whom was aware of the case at the time this paper went to press and therefore none was willing to comment on the record.