Jevarreo Kelley-Lomax v. City of Chicago ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-2891
JEVARREO KELLEY-LOMAX,
Plaintiff-Appellant,
v.
CITY OF CHICAGO, ILLINOIS,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 20 C 4638 — John Z. Lee, Judge.
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ARGUED SEPTEMBER 12, 2022 — DECIDED SEPTEMBER 28, 2022
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Before EASTERBROOK, KIRSCH, and JACKSON-AKIWUMI, Cir-
cuit Judges.
EASTERBROOK, Circuit Judge. A person arrested in Chicago
can take some property into jail but must surrender other
property, including cell phones. Chicago offers the detainee
30 days to reclaim the property in person (if released before
then) or by proxy—the detainee may designate a friend or rel-
ative to pick it up. Property remaining in the City’s hands af-
ter 30 days is sold or thrown away. Conyers v. Chicago, 10 F.4th
2 No. 21-2891
704 (7th Cir. 2021), cert. denied, 142 S. Ct. 1669 (2022), rejects
several constitutional challenges to the City’s policy.
Jevarreo Kelley-Lomax wants us to take another look at
the subject. After he was arrested, he remained in custody for
more than 30 days and did not find anyone willing to retrieve
his property. The City disposed of a cell phone and a wallet,
including a debit card and library card, that the police had
seized. Deeming the suit controlled by Conyers, the district
court dismissed the complaint for failure to state a claim on
which relief may be granted.
Conyers held, among other things, that the Fourth Amend-
ment (applied to state actors by the Fourteenth) does not reg-
ulate disposition of the seized property. 10 F.4th at 709–10.
Disposition, we concluded, is governed by the Due Process
Clause. The Fourth Amendment is satisfied if the seizure is
reasonable when it occurs—as seizure of an arrestee’s prop-
erty is, see Lee v. Chicago, 330 F.3d 456 (7th Cir. 2003). Kelley-
Lomax wants us to overrule this portion of Conyers, but we do
not see any deficiency in that opinion’s reasoning.
Conyers rejected a due process challenge to the City’s pol-
icy, holding that the City provides detainees with notice and
an opportunity to reclaim their property. Kelley-Lomax tries
a different tack: substantive due process. He maintains that
the City must serve as unpaid custodian of his goods for as
long as it takes for him (or his designee) to retrieve the items.
Put in that way, the argument lacks any prospect of suc-
cess. Substantive due process depends on the existence of a
fundamental right, which means a right with deep roots in
our history and traditions. See, e.g., Washington v. Glucksberg,
521 U.S. 702, 721 (1997); Timbs v. Indiana, 139 S. Ct. 682, 686–
No. 21-2891 3
87 (2019); Dobbs v. Jackson Women’s Health Organization, 142 S.
Ct. 2228, 2246–48 (2022). Kelley-Lomax does not contend that
our historical tradition recognizes a right to have the govern-
ment serve as unpaid custodian of property for extended pe-
riods. Instead he characterizes the fundamental right as prop-
erty itself.
We do not doubt that property is a fundamental right; the
Takings Clause shows as much. But, as we explained in Co-
nyers, property can be abandoned. After that occurs the for-
mer owner lacks rights. 10 F.4th at 712. Chicago draws the
abandonment line at 30 days. That choice cannot be acacked
by pointing to the fundamental status of “property” in the ab-
stract. Instead the plaintiff must address the actual policy at
stake: the government’s unwillingness to serve as unpaid
bailee for indefinite periods. And on that score Kelley-Lomax
does not even try to show that such a role for government has
historical provenance.
Conyers remarked that 30 days is a short time for a detainee
to take the steps necessary to retrieve property. 10 F.4th at 715.
Perhaps it is too short. The Due Process Clause requires notice
and an adequate opportunity to protect one’s interests. But in
this case, just as in Conyers, the plaintiff has made an all-or-
none argument. Instead of contending that the Constitution
requires 60 or 90 days, Kelley-Lomax contends that a detainee
is entitled to wait a lifetime before claiming the property. Per-
haps that strategy is driven by the fact that during the whole
six months he remained in custody, Kelley-Lomax did not try
to retrieve the phone or wallet. The choice between 30 days
and a longer time did not macer to Kelley-Lomax. But it may
macer to other detainees, and Conyers leaves timing open.
4 No. 21-2891
Conyers also does not tackle the question whether Chicago
must sell the seized items for the detainees’ accounts rather
than throwing them in the trash. Units of government often
take custody of unclaimed property, returning it once the
owner has been identified (provided that the time for escheat
has not arrived). We held in Cerajeski v. Zoeller, 735 F.3d 577(7th Cir. 2013), and Goldberg v. Frerichs, 912 F.3d 1009 (7th Cir.
2019), that, when the property is financial (securities or
money on deposit), the government must return it with inter-
est once the owner steps forward. Cf. Webb’s Fabulous Pharma-
cies, Inc. v. Beckwith, 449 U.S. 155 (1980); Brown v. Legal Foun-
dation of Washington, 538 U.S. 216 (2003). The government may
charge custodial fees but must surrender the balance.
That approach works well with monetary instruments.
Physical items seized from arrested persons make claims on
limited space, and for many detainees the costs of arranging
a sale in order to free up space would exceed the value of the
items in inventory. But cell phones and jewelry often have
substantial market value. When the governmental interest is
limited to rationing available storage, perhaps the option of
sale for detainees’ accounts must be considered. See also
United States v. Miller, 588 F.3d 418 (7th Cir. 2009) (seized fire-
arms that have not been forfeited may be sold for owner’s ac-
count but must not be destroyed if they have value net of ex-
penses for custody and sale). Conyers did not make an argu-
ment along these lines, and neither did Kelley-Lomax. We
mention the possibility not to resolve it, but to show that nei-
ther Conyers nor this decision has resolved it implicitly.
AFFIRMED