Seventh Circuit holds that six month delay between property inspection and municipal ordinance citation does not violate due process

Does a six month delay between a property inspection and notice of a municipal ordinance citation violate due process? In Nanette Tucker v. City of Chicago, et al., No. 17-2480 (7th Cir. Oct. 19, 2018) the United States Court of Appeals for the Seventh Circuit affirmed the district court’s ruling that the City’s delay in serving a citation did not violate due process, dismissing the property owner’s complaint for failure to state a procedural due process claim under 42 U.S.C. § 1983.

An inspector for Chicago’s Department of Streets and Sanitation inspected the owner’s property on June 3, 2015 and concluded its vegetation violated the city’s yard weed ordinance which imposed a fine for weeds exceeding an average height of ten inches. The inspector took two photographs from the street to depict the overgrown vegetation. No citations or notices regarding the inspection were posted at the property. Six months later, another City employee served the owner with a citation for the alleged June 3rd violation. The citation notified the owner she could appear at a hearing before the end of the month to contest the violation. The owner appeared at the hearing where a fine was imposed.

The owner then brought a class action suit against the inspector in her individual capacity and against the City claiming that the city’s six month delay in notifying her of the yard week citation denied her due process.

The owner did not dispute that she received a hearing and framed her claim as “a prehearing denial of due process.” The Court rejected this claim for the fundamental flaw that the city did not deprive the owner of anything until the December 2015 hearing. Before then, the city had simply issued her a citation. Therefore, the delay between the inspection and the citation is relevant only to whether the hearing itself was constitutionally adequate. The delay alone does not constitute a due process violation.

Supreme Court precedent provides that statutes of limitations are the primary line of defense against prosecutorial delay, but Chicago’s yard week ordinance does not have one. Due process has “a limited role to play in protecting against oppressive delay.” Such violations occur only where the delay “violates those fundamental conceptions of justice which lie at the base of our civil and political institutions … and which define the community’s sense of fair play and decency.” An accused must demonstrate “actual and substantial prejudice,” at which point the burden shifts to the government to show the reason for its delay was not improper. To demonstrate actual and substantial prejudice, “[I]t is not enough to show the mere passage of time nor to offer some suggestion of speculative harm; rather, the defendant must present concrete evidence showing material harm.”

The owner asserted the delay caused her prejudice in that she was unable “to make any measurements of the average height of the vegetation on her lot at or near the time of the inspection” or to use “photographs taken contemporaneously with the date of the alleged violation.” The Court held that such allegations do not plausibly demonstrate actual and substantive prejudice. Many defendants wish they had access to non-existent, contemporaneous evidence to use in their defense, but this “does not render the hearing meaningless” for purposes of due process. Because the owner had neither pointed to any authority suggesting that law enforcement must initiate a prosecution immediately, nor demonstrated actual and substantial prejudice, the district court’s ruling was affirmed.

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