Among the many risks one takes in Chicago, aside from well-coiffed hair being blown askew, is the laundry list of reasons why the police can seize your car, charge you for the pleasure, then forfeit it. Drugs? Weapon? Sex with someone other than your spouse who happens to require payment in cash? This is why Chicagoans can’t have nice things.
In the case of Ivy Jackson, a couple of guys smoking a blunt in the front seat of her Mitsubishi was enough to do the trick, via Forfeiture Reform. Officer FNU Ugarte nailed the perps, and poof, the car was gone. The city has a killer administrative ordinance on the subject.
(a) The owner of record of any motor vehicle that contains any controlled substance or cannabis, as defined in the Controlled Substances Act, 720 ILCS 570/100, et seq., and the Cannabis Control Act, 720 ILCS 550/1, et seq., or that is used in the purchase, attempt to purchase, sale or attempt to sell such controlled substances or cannabis shall be liable to the city for an administrative penalty of $1,000.00 plus any applicable towing and storage fees. Any such vehicle shall be subject to seizure and impoundment pursuant to this section. This subsection shall not apply: (1) if the vehicle used in the violation was stolen at the time and the theft was reported to the appropriate police authorities within 24 hours after the theft was discovered ***; (2) if the vehicle is operating as a common carrier and the violation occurs
without the knowledge of the person in control of the vehicle; or (3) if the owner proves that the presence of the controlled substance or cannabis was authorized under the Controlled Substances Act or the Cannabis Control Act.
The best part is that not only do you lose your car, but you suffer an additional $1,000 “administrative penalty” plus the cost of the cops taking and storing (as if they were doing you a favor). In Jackson’s case, that came to more than $2,000.
Jackson challenged the seizure as a violation of substantive and procedural due process, based upon the absence of an “innocent owner” defense to forfeiture. The 1st District Court of Appeals was unpersuaded. The court swiftly dispensed with the rational relationship test:
Generally, “[l]egislation does not violate substantive due process protections if it bears a rational relationship to a legitimate governmental purpose and is neither arbitrary nor discriminatory.”
In the case at bar, regulating the possession of controlled substances and cannabis within a vehicle is a legitimate governmental purpose, and section 7-24-225 of the Municipal Code bears a rational relationship to that purpose, since it removes the vehicle used for an illegal purpose from further use for that purpose.
Don’t let the word “arbitrary” fool you. If the ordinance permitted forfeiture of shoes, it would pass muster as it would regulate walking from a residence to a car to prevent an illegal use. Any string of words, no matter how laughable, would suffice.
But what about the innocent owner, the person whose property is lost but did nothing wrong? While that might matter in a criminal proceeding, where the person sentenced to the loss of her car would have to first be convicted of a crime, it’s no impediment to administrative forfeiture at all. It’s our old friend, the legal fiction of forfeiture in rem. This isn’t a criminal punishment, which would be wrong. Oh no, this is merely an administrative penalty, which is perfectly fine.
In reading the ordinance, Jackson asks us to consider “societal costs” and the fundamental notion that the innocent should not pay when they have done nothing wrong. However, as noted, we have upheld impoundment ordinances without innocent owner defenses because they “ ‘may still have the desirable effect of inducing [innocent owners] to exercise greater care in transferring possession of their property.’ ”
And doesn’t society want owners of cars to exercise greater care? Who wouldn’t, right? After all, an owner is liable for the negligence of the person to whom they lend a car and then harms someone else in an accident. Of course, this isn’t a forfeiture, and reflects a choice between the victim of the accident suffering as opposed to the driver, who is primarily liable and the owner, who is secondarily liable and, by law, must carry insurance for the benefit of the victim. But hey, the owner still suffers for her choices?
And yet, the decision is fundamentally an exercise in deferring to precedent, as there is indeed a long history of upholding forfeiture laws that reflect no proportionality, essentially no meaningful procedural due process and is, at its core, plain, old unfair.
While the decision reads like a Scalia dissent, in that it upholds the constitutionality of the ordinance while leaving the absence of an “innocent owner” defense to the policy call of the legislative body, it still falls short. It is not rational, except by the rending of rhetoric, to forfeit the property of an innocent owner, who neither knew nor had reason to know that her property would be used in an unlawful manner. By definition, if the owner exercised due care and didn’t know, then there was nothing she could have done to prevent it and absolutely no “desirable effect” could be achieved.
What the court’s rationale does is place the owner in the position of being an absolute guarantor of every person who enters her vehicle, whether with her direct permission or by extension. Indeed, how much “greater care” can be demanded of a person when there is no way of knowing what another person may ultimately do? Even if junior has never smoked dope in his life, there could be a first time. And if may well be in the car. And if not junior, what about his girlfriend’s second cousin in the way to church doesn’t have a leftover seed in her purse? The attenuation is easy enough to write about, but does this court suggest that the owner, the exercise of the greatest care ever, could prevent every possibility?
Of course, the owner could do so, but only by never allowing anyone else in her car. Ever. Under any circumstances. Because, well, you never know. And that’s what they call rational in Chicago.