Court gives Waukegan towing law heave-ho

Community activists this week hailed a federal judge's decision to strike down Waukegan's towing ordinance, while city officials said the law has made the streets safer and vowed to appeal.

U.S. District Judge Joan Lefkow ruled Nov. 16 that the ordinance, which requires police to impound the car of any driver without a valid driver's license or insurance, violates the 4th Amendment's protection against unreasonable seizure of property because it does not allow police to consider whether towing the car is necessary to maintain public safety.

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"As a consequence, the seizure ordinance is unconstitutional," she wrote.

Lefkow barred Waukegan from enforcing the law, and city attorneys said police have stopped towing vehicles.

Community groups have opposed the 4-year-old ordinance, believing it was aimed at immigrant Hispanics. They also argued that the automatic $500 impound fee and towing, storage and citation charges were not only excessive, they often added up to more than the cars were worth.

"People's constitutional rights are not something to mess around with," said Margaret Carrasco of Waukegan, who leads the Latino-rights group Casa Mexiquense. "I felt that Judge Lefkow wanted to send a clear message out in regard to ordinances that are manipulated in a way to violate constitutional rights of any human walking on the streets of Waukegan. Or driving."

City attorneys Brian Grach and Gretchen Neddenriep said they believed the ordinance was constitutional and were shocked by the ruling. The city will appeal as soon as possible, they said.

"From the mayor and the City Council's point of view, the goal is to make the streets of Waukegan as safe as possible, and this ordinance was aimed at reducing the number of accidents in Waukegan," Grach said. "The statistics show a substantial decrease in the number of accidents on the streets of Waukegan, and that's why we will immediately go to the 7th Circuit Court of Appeals."

In the case before Lefkow, Larissa Harrington lent her car to her son, who was stopped for speeding in September 2003 while driving with a license that had expired three months earlier. The son called Harrington, who asked police if she could drive the car home.

Though Harrington was properly licensed and insured and owned the car, the officer refused to let her take it, citing the mandatory towing law. Harrington challenged the law as a violation of the 4th and 14th Amendments.

Noting that the ordinance had deterred lawful owners from lending their cars to others who were not, Lefkow wrote that "deterrence is not a justification for impoundment" under the community caretaking powers granted to police.

Lefkow also ruled that Harrington was not entitled to punitive damages from the officer who wrote the ticket or from the city, which had already refunded her $800. She did not rule on the 14th Amendment claim that Harrington was denied due process.

Harrington's attorney, Earline Navy, said Waukegan was improperly attempting to override Illinois' vehicle code, which already calls for hundreds of dollars in fines for the types of violations the city sought to dissuade.

"It has to do with respecting Illinois law and following it," Navy said. "If municipalities don't think Illinois law is sufficient ... then they need to go to the normal channels and talk to our representatives and get the laws changed, not take it on themselves."

Navy has other clients who want their money back, and she hopes Lefkow will allow a class-action suit against the city at a hearing Thursday.

Ald. Sam Cunningham said he supports cracking down on drivers without licenses or insurance but has sought changes in the ordinance for several years to make it less harsh.

"I think we should have done something a little bit different before we got to this point," he said.

Cunningham is worried about the ruling's effect on the city's budget. The court proceedings have been expensive, he said, plus the city may have to pay back $500 fines to hundreds or even thousands of people, in addition to finding revenue to replace the $2 million a year the city has brought in through the fines.

But to Cunningham, Lefkow's ruling that the city had breached the Bill of Rights was the most sobering.

"Unconstitutional--that is more disturbing to me than anything," he said. "I don't ever want to be in a city that is violating civil rights. I don't want to be part of that."

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