                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 02-1503
MARK A. LEE,
                                               Plaintiff-Appellant,
                                 v.

CITY OF CHICAGO,
                                              Defendant-Appellee.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
       No. 01 CV 6751—Charles P. Kocoras, Chief Judge.
                          ____________
    ARGUED OCTOBER 28, 2002—DECIDED MAY 22, 2003
                   ____________


 Before KANNE, DIANE P. WOOD, and EVANS, Circuit
Judges.
  KANNE, Circuit Judge. Mark A. Lee was struck by stray
gunfire while driving his car down a Chicago, Illinois
street on June 9, 2001. In hopes of tracking down the
shooter, Chicago police officers promptly impounded Lee’s
car so that they could later search for, retrieve, and analyze
any bullets that might have become lodged in it. Ten days
later on June 19, 2001, the City of Chicago informed Lee
that they no longer needed his car for evidentiary pur-
poses. But in a notice entitled, “Vehicle on Hold for Investi-
gation,” which the City had sent Lee two days after the
shooting and impoundment, it had informed him that before
he could retrieve his car, Lee either had to pay all applica-
2                                              No. 02-1503

ble towing and storage fees or request a hearing. If he
didn’t pay or pursue this hearing process within thirty
days of the date of the car’s impoundment, the City told
him it could “dispose of ” his car—a euphemism for either
crushing it or selling it at auction.
  Lee wanted to retrieve his car as soon as possible, but he
was unable to pay the amount the City demanded. So, he
got a lawyer, and through him was able to negotiate an
acceptable payment amount. But when he retrieved his car,
thirty-one days after it had been impounded, he found that
the City had spray painted large, bright-red, six-digit
inventory numbers on its hood and its passenger’s and
driver’s side panels. The City didn’t pay for this damage,
nor did it offer to discount or refund the money Lee had
just paid the City to retrieve his newly redesigned car.
  Lee sued. On August 29, 2001, Lee filed a complaint in
federal court against the City of Chicago pursuant to
42 U.S.C. § 1983 alleging that the City had violated his
rights under the Fourth Amendment to be free from
unreasonable searches and seizures and under Fourteenth
Amendment substantive-due-process principles in two
ways: (1) by requiring him, as the owner of a vehicle
impounded for evidentiary purposes, to pay towing and
storage fees, and (2) by spray-painting inventory num-
bers on his car without consent and without compensation.
Lee also brought pendant state-law claims for implied
bailment, trespass, and conversion. Lee filed an amended
complaint on behalf of two classes of similarly situated
individuals (those who had to pay fees and those whose
cars were repainted).
  The City moved to dismiss the amended complaint under
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The
district court granted the motion on January 30, 2002,
holding that Lee lacked standing to challenge his car’s
spray painting because he presented no evidence that he
No. 02-1503                                                 3

maintained a cognizable property interest in the car at
the time it was painted, and that he could not make out
a claim under either the Fourth or Fourteenth Amend-
ment regarding the City’s practice of charging towing and
storage fees. Lee appeals. We reverse in part, holding
that Lee has satisfied his burden in establishing facts
sufficient to withstand a Rule 12(b)(1) motion and to
confer standing to challenge the City’s spray painting
of his car, but affirm, on alternate grounds, the district
court’s dismissal under Rule 12(b)(6) of the claims challeng-
ing the City’s practice of charging towing and storage fees.


                        ANALYSIS
I.    Rule 12(b)(6)
  We examine a district court’s grant of a Rule 12(b)(6)
motion de novo. Johnson v. Martin, 943 F.2d 15, 16 (7th Cir.
1991). In reviewing the grant of the motion, we view the
complaint in the light most favorable to the plaintiff, taking
as true all well-pleaded factual allegations and making
all possible inferences from those allegations in his or her
favor. Id. A motion to dismiss is to be granted only if “it
appears beyond doubt that the plaintiff can prove no set
of facts in support of his claim which would entitle him to
relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
  The City’s Rule 12(b)(6) arguments addressed only the
City’s practice of charging towing and storage fees to car
owners whose cars had been impounded for investigatory
purposes. We therefore address Lee’s two claims under
the Fourth and Fourteenth Amendment challenging this
practice separately and in turn.


     A. Fourth Amendment
  The parties do not dispute that the initial impoundment
of Lee’s car for evidentiary purposes was a reasonable
4                                                    No. 02-1503

seizure. Nor does Lee claim that the delay between the
City’s seizure of his car and the City’s completion of its
search rendered that subsequent search unreasonable.
Rather, Lee claims that the City’s refusal to return his
car to him unless he paid the car’s towing and storage fees
or requested a hearing, when the City had already con-
cluded its search, constituted an additional “seizure” within
the meaning of the Fourth Amendment.1 Alternatively,
he argues that the otherwise reasonable seizure of his
car became unreasonable when the government’s law-
enforcement interest in his car ceased but his possessory
interest in the property survived. In either case, he ar-
gues the continued possession of the property by the
government became a meaningful interference with his
possessory interest and, thus, must be interpreted as a
Fourth Amendment seizure. Lee then argues that this
failure-to-return seizure cannot be deemed reasonable
when its sole purpose was to enforce a demand, under
threat of loss or destruction of the car, for payment of the
car’s towing and storage—a cost of law enforcement Lee
argues should be spread among the public as a whole, who
all both bear the risk of violent crime and receive the
benefits of crime solved, rather than assessed to him alone,
the unfortunate victim of this random occurrence.
  In response, the City argues that when it concluded
its investigation, the car became available for retrieval. At
that moment, all “seizure” of the car had in effect ended.
The subsequent conditioning of the car’s release upon the
payment of fees or the successful pursuit of a hearing is, in
the City’s view, a mere dispute about money—that is, how
much the City was entitled to charge Lee for towing


1
   Of course, Lee recognizes that the amendment does not apply
to the City’s actions directly, but rather vis-a-vis its incorpora-
tion through the due process clause of the Fourteenth Amend-
ment. See generally Mapp v. Ohio, 367 U.S. 643 (1961).
No. 02-1503                                                       5

and storage—and does not raise Fourth Amendment
concerns. Even if it did, the city argues that its policy of
apportioning some of its law-enforcement costs of pursu-
ing criminals to the victims who are most likely to benefit
from that pursuit is reasonable.
  The Fourth Amendment protects the “right of the people
to be secure in their persons, houses, papers and effects,
against unreasonable searches and seizures . . . .” U.S.
CONST. amend. IV. In clarifying that the amendment
addressed property interests in addition to privacy con-
cerns, the Supreme Court defined the amendment’s use
of the term “seizure” as “some meaningful interference
with an individual’s possessory interests in [his] property.”
Soldal v. Cook County, 506 U.S. 56, 61 (1992) (citing United
States v. Jacobsen, 466 U.S. 109, 113 (1984)). Whether,
under this definition, a state actor’s refusal to return once
lawfully obtained property can amount to an unreasonable
seizure, or, alternatively, transform a seizure from rea-
sonable to unreasonable, is an issue of first impression in
this Circuit, and to our knowledge has been addressed by
only two other circuits—the Sixth, see Fox v. Van Oosterum,
176 F.3d 342, 351 (6th Cir. 1999), and the Second, see
United States v. Jakobetz, 955 F.2d 786, 802 (2d Cir.
1992)—both of which held that when the police hold onto
evidence longer than it is needed for investigatory pur-
poses, the owner has no recourse under the Fourth Amend-
ment.2


2
   The Tenth Circuit has noted that the continued deprivation
of property may raise statutory or constitutional violations. Davis
v. Gracey, 111 F.3d 1472, 1477 (10th Cir. 1997). It found support
for potential statutory violations in provisions such as Federal
Rule of Criminal Procedure 41(e), which allows a criminal
defendant aggrieved by an unlawful search, seizure, or depriva-
tion of property to petition for its suppression or return. Id. And
                                                      (continued...)
6                                                   No. 02-1503

  The Second Circuit reached this position with rather
limited discussion in Jakobetz. 955 F.2d at 802. In that
case, the prosecution sought to introduce photographic
evidence that the New York City police department had
retained from an earlier investigation involving unrelated
charges against Jakobetz. After those initial, unrelated
charges had been dropped, New York law directed the police
to return the photos, which the police failed to do. On
that basis, Jakobetz argued that the failure to return the
photos constituted an unreasonable seizure and that the
prosecution should therefore be barred from introducing the
photos as evidence against him in the subsequent pro-
ceeding. The Second Circuit disagreed. It didn’t “think
that the ‘seizure’ alleged [was] one that deserve[d] the
special protections provided by the fourth amendment,”
noting there was no authority for the contrary position. Id.
At most, the court thought Jakobetz might be able to
establish a violation of a statutory right. Id. The court
went on to note that even if they were to find an unrea-
sonable seizure, Jakobetz had failed to allege any wilful
intent on the part of the police to retain the property
unlawfully. And since the exclusionary rule seeks only to
deter police misconduct, they could see no purpose in
applying the rule. Id.
  With more discussion than the Second Circuit’s resolu-
tion of the issue in Jakobetz, a split panel of the Sixth


2
   (...continued)
the court recognized a potential First Amendment challenge
should the state not conduct an adversarial proceeding within
a certain time frame to determine whether the material was, in
fact, obscene. Id. (citing In re Search of Kitty’s East, 905 F.2d
1367, 1371, 1375 (10th Cir. 1990) (discussing the potential for
First Amendment violations)). The court did not reach the issue
of whether a constitutional challenge could arise under the Fourth
Amendment. Id.
No. 02-1503                                                 7

Circuit in Fox determined that a failure to return property
would not constitute a Fourth Amendment seizure. Fox, 176
F.3d at 349-50. In the majority’s view, the amendment
protected only an individual’s interest in retaining prop-
erty against illegal government intrusion, rather than an
interest in regaining possession of that property. Id. at 350.
To reach this conclusion, the court largely relied upon a
remark made by Justice Stevens in his concurrence in
Texas v. Brown, a case in which a plurality of the Justices
held that a warrantless seizure of a balloon from inside
a vehicle was justified, even though its contents were
not visible to the officer, where incriminating evidence
sufficient to establish probable cause that the balloon
contained contraband came into the plain view of an officer
during the course of an investigatory stop. 460 U.S. 730,
744 (1983) (plurality opinion). Here is what Justice
Stevens said there: “The [Fourth] Amendment protects two
different interests of the citizen—the interest in retaining
possession of property and the interest in maintaining
personal privacy.” Id. at 747 (Stevens, J., concurring) (em-
phasis added). Justice Stevens’s point was that these two
interests, possession and privacy, were separate, distinct,
and protected by the amendment individually. In his
view, circumstances could arise to diminish an individual’s
possessory interest in a closed container discovered in
“plain view” during the course of an investigatory stop,
justifying a warrantless seizure of the property to ensure
against its loss or destruction, but could nevertheless
leave the individual’s privacy interest in the contents of
that container undisturbed, therefore mandating that a
warrant be obtained before opening that container and
searching it. Id. at 749-50. This distinction between prop-
erty and privacy interests, the Sixth Circuit in Fox noted,
was later recognized by a majority of the Supreme Court
in Soldal. Fox, 176 F.3d at 350 (citing Soldal, 506 U.S. at
62-63 (recognizing that the Fourth Amendment “protects
property as well as privacy”)). And since the Soldal majority
8                                                 No. 02-1503

had cited Justice Stevens’s Brown concurrence, the Fox
court implied that the Court also had Justice Stevens’s
particular phrasing of that property interest in mind
when defining the term “seizure” as a “meaningful interfer-
ence with a possessory interest.” Id. at 351.
  Assigning precedential value to this phrasing is problem-
atic. As an initial matter, there is little in Justice Stevens’s
concurring opinion in Brown to suggest that he had a
temporal restriction in mind when he described the prop-
erty interest. Accord California v. Hodari D., 499 U.S.
621, 632-34 (1991) (Stevens, J., dissenting) (arguing against
strict literal construction of the term “seizure”). To the
contrary, the analysis is consistent with the notion that
an individual’s Fourth Amendment rights do not dis-
sipate upon the loss of physical possession—at the very
least, Justice Stevens believed an individual’s privacy
interests in their property may remain intact despite
dispossession. And although the Soldal court may have
cited Justice Stevens’s Brown concurrence, as well as his
majority opinion in United States v. Jacobsen, 466 U.S. 109,
113 (1984), for the proposition that the amendment serves
to protect dual interests of privacy and possession, noth-
ing in that opinion suggests that the adoption of the
distinction subsumed as well the conception of that
possessory interest as one of retention.
  But this is not to suggest that there aren’t other justifica-
tions for reaching the same conclusion as the Fox and
Jakobetz courts. First, we cannot overlook the text of the
amendment, which states that it protects the right “to be
secure” in one’s home, person, or effects. That language
suggests a state of being that is protected against intru-
sion by unlawful government action. It then could be ar-
gued that once that state has been disturbed by an act of
dispossession, the individual is no longer secure in his
possessory interest within the meaning of the amendment.
Moreover, at the time of the amendment’s drafting, the
No. 02-1503                                                       9

word “seizure” was defined as a temporally limited act, one
involving the “confiscation or forcible taking possession (of
land or goods); a sudden and forcible taking hold.” OXFORD
ENGLISH DICTIONARY (2d ed. 1989) (quoting 10th Rep. Hist.
MSS. Comm. App. v. 516 (1701) (“His Majestie Attornie-
Generall . . . moved . . . for a seizure of the premises.”), and
BURKE CORR. IV 143 (1793) (“The seizure of the estates
of the church.”)); see also California v. Hodari D., 499 U.S.
621, 624 (1991) (“From the time of the founding to the
present, the word ‘seizure’ has meant a ‘taking posses-
sion.’ ” (quotations omitted)); Thompson v. Whitman, 85 U.S.
(18 Wall.) 457, 471 (1873) (“A seizure is a single act, and
not a continuous fact.”). Thus, Justice Stevens’s descrip-
tion—even if lacking in independent precedential value—is
consistent with this literal reading.
  Besides the textualist argument, there is precedent in
this Circuit that requires us to restrict Fourth Amend-
ment seizures temporally. In Wilkins v. May, we rejected
the idea that a Fourth Amendment seizure can continue
beyond the point of arrest to govern excessive-force
claims brought by pretrial detainees.3 872 F.2d 190, 194
(7th Cir. 1989); see also Reed v. City of Chicago, 77 F.3d
1049, 1052 n.3 (7th Cir. 1996) (reaffirming Wilkins on this
point and rejecting the notion that Justice Ginsburg’s
endorsement of the continuing-seizure concept in Albright
v. Oliver, 510 U.S. 266, 276-80 (1994) (Ginsburg, J., concur-


3
  In rejecting this concept of a “continuing seizure,” we are joined
by the Fourth, Fifth, and Eleventh Circuits. See, e.g., Riley v.
Dorton, 115 F.3d 1159, 1163 (4th Cir. 1997) (citing Brothers v.
Klevenhagen, 28 F.3d 452, 456 (5th Cir. 1994), and Cottrell v.
Caldwell, 85 F.3d 1480, 1490 (11th Cir. 1996)). The Fifth Circuit
has recently rejected the argument advanced by pretrial detainees
that being charged fees in conjunction with bail release consti-
tutes an unreasonable seizure. Broussard v. Parish of Orleans,
318 F.3d 644, 662 (5th Cir. 2003).
10                                                   No. 02-1503

ring), was controlling precedent).4 Two practical reasons led
us to reject the notion of a “continuing seizure.” First, the
“considerations that have been used to give meaning to the
key substantive term in the amendment—‘unreasonable’—
are largely inapplicable once the arrest has taken place
and the arrested person has been placed securely in cus-
tody.” Wilkins, 872 F.2d at 193. We noted that the usual
issue for Fourth Amendment cases in general was wheth-
er probable cause existed, and in a typical Fourth Amend-
ment excessive-force case it was the related issue of
“whether the force used to seize the suspect was exces-
sive in relation to the danger he posed.” Id. (citations
omitted). Neither of these issues would be presented when
a suspect was already lawfully in custody. Id. As such, the
“text, history, and judicial interpretations” of the Fourth
Amendment would prove unhelpful in resolving the cases.
Id. at 194.
  Second, allowing the analysis to proceed outside this
traditional context, under the amendment’s general reason-


4
   In Newsome v. McCabe, we rejected the tripartite formula for
a constitutional tort of malicious prosecution—that is, analyzing
the claim first as one for unlawful arrest under the Fourth
Amendment; then, as pretrial detainees, under substantive due
process; and, after trial, under the Eighth Amendment protections
against cruel and unusual punishment—that was set forth as
dicta in Wilkins and Reed, by interpreting Albright, in accord with
its narrowest ground of decision, to bar any constitutional theory
of malicious prosecution at all when adequate state-law remedies
exist. Newsome v. McCabe, 256 F.3d 747, 750-51 (7th Cir. 2000).
Nothing in that decision, however, disturbs the effective holding
of Wilkins that Fourth Amendment protections do not extend
beyond the point of arrest. In fact, consistent with Reed, our
decision in Newsome recognizes that Justice Ginsburg’s Albright
“continuing seizure” concurrence is not controlling law. Id. at 751
(finding Albright’s narrowest ground of decision and effective
holding to be Justices Kennedy’s and Thomas’s concurring
opinion).
No. 02-1503                                               11

ableness requirement, would lead to an “unwarranted
expansion of constitutional law.” Id. We noted, for example,
that if an officer were to stick his tongue out at a suspect
during a custodial interrogation, his behavior would
certainly be considered unreasonable.
    [W]ould it therefore make the “continuing seizure” . . .
    violative of the Fourth Amendment? Surely not. But
    why not? There are no obvious limiting principles
    within the amendment itself. The problem is that the
    concept of continuing seizure attenuated the ele-
    ment that makes police conduct in the arrest situa-
    tion problematic: the police are taking away a per-
    son’s liberty. Custodial interrogation does not curtail
    a person’s freedom of action; it presupposes that he
    has already lost that freedom—for by definition he is
    already in custody.
Id. Given this, we found it unwise to extend the scope of
the amendment.
  Against our reaching an analogous conclusion here, Lee
argues that the Supreme Court’s holding in United States
v. Place broadly proposes that upon changed circum-
stances over time, a seizure of property that began as
reasonable can become unreasonable. 462 U.S. 696 (1983).
But such an extension of Place betrays the narrow con-
fines of its holding, which is limited to brief investigative
detentions of property on less than probable cause. Place
held that an officer who can articulate a reasonable suspi-
cion that property may be involved in a crime may act
to detain that property in order to conduct further investi-
gation. Id. at 706 (“In sum, we conclude that when an
officer’s observations lead him reasonably to believe that
a traveler is carrying luggage that contains narcotics, the
principles of Terry [v. Ohio, 392 U.S. 1 (1968)] and its
progeny would permit the officer to detain the luggage
briefly to investigate the circumstances that aroused his
12                                               No. 02-1503

suspicion, provided that the investigative detention is
properly limited in scope.”) After the expiration of a rea-
sonable amount of time for the police to conclude whether
their suspicions were justified, however, that detention
begins to impede significantly upon the individual’s pos-
sessory interest and, as such, becomes a full-blown seizure.
See Farm Labor Organizing Comm. v. Ohio State Highway
Patrol, 308 F.3d 523, 548 (6th Cir. 2002). If at that mo-
ment, the police have not established probable cause, then
they cannot justify the property’s seizure. In short, Place
and its progeny deal only with the transformation of a
momentary, investigative detention into a seizure. See Fox,
176 F.3d at 351 n.6 (“The Place Court provided a frame-
work for analyzing when law enforcement agents may hold
someone’s property for a very short time on less than
probable cause to pursue a limited course of investigation.”).
As such, Place is ultimately concerned only with the initial
loss of that possessory interest and whether the existence
of probable cause renders that loss reasonable. It has no
application after probable cause to seize has been estab-
lished.
  Similarly, other Fourth Amendment cases, such as
those which mandate that property detained during a
consensual search be returned to the owner upon the
withdrawal of consent, are concerned ultimately with the
relation between probable cause and a loss of a possessory
interest. Generally speaking, a person who has given valid
consent to a seizure may withdraw that consent by re-
questing the article’s return. Florida v. Jimeno, 500 U.S.
248, 252 (1991) (“A suspect may of course delimit as he
chooses the scope of the search to which he consents.”);
United States v. Jachimko, 19 F.3d 296, 299 (7th Cir. 1994)
(stating general principle that consent may be withdrawn);
Richard A. Vaughn, DDS, P.C. v. Baldwin, 950 F.2d 331
(6th Cir. 1991) (where plaintiff gave his business records
to the IRS so that they could be copied but later made a
No. 02-1503                                                 13

formal demand for their return, “the government had no
right to possession after consent was withdrawn”). It could
be argued from these cases that continuing to retain
property in light of an owner’s demand for its return
constitutes an unreasonable seizure in all circumstances.
But like Place, these cases cannot be read so broadly.
Most courts treat consent as an exception to the amend-
ment’s warrant requirement, see Fox, 176 F.3d at 357 n.4
(discussing consent as “an exception to the Fourth Amend-
ment’s warrant requirement in the same way as an inven-
tory search is”); see also United States v. Basinski, 226 F.3d
829, 834 (7th Cir. 2000) (same), and thus recognize that
the owner’s revocation and request for return “need not
be complied with if there is then probable cause to retain
[the property] as evidence.” 3 WAYNE R. LA FAVE, SEARCH
& SEIZURE § 8.1(c) (3d ed. 1996) (citing examples); see also
United States v. Mitchell, 82 F.3d 146, 151 (7th Cir. 1996).
It follows that, like Place, these cases address the cir-
cumstances under which police may initially detain per-
sonal property on less than probable cause—either upon
reasonable suspicion of criminal activity or by virtue of
the owner’s consent. But when either of these two precon-
ditions expire, a limited detention becomes a full-blown
seizure, which is either justified by probable cause or is
unreasonable.
  Attempting to extend the Fourth Amendment through
Place or these consent cases to address the situation be-
fore us would implicate the same practical concerns we
found unsettling in Wilkins. In short, the core of past
Fourth Amendment jurisprudence would no longer be
relevant to resolve the issues presented. See Riley, 115 F.3d
at 1162-63 (citing “[d]ecades of Fourth Amendment prece-
dent [that has] focused on the initial deprivation of liberty”;
for example, “what constitutes an arrest; what constitutes
probable cause to make an arrest; when probable cause
must be found by a neutral magistrate; which officials
14                                               No. 02-1503

may issue a warrant; what type of information is required
to support a valid warrant; and what force may be used
during an arrest.” (citations omitted)). Admittedly, probable
cause, while unquestionably existent at the moment of
the car’s impoundment, is no longer offered as an interest
to justify the City’s refusal to return Lee’s car uncondi-
tionally. In fact, the government interests advanced here
aren’t really concerned with law-enforcement goals at all;
they are more appropriately characterized as fiscal. And
they are strikingly similar to those which we have al-
ready considered legitimate and rational in another consti-
tutional context. Miller v. City of Chicago, 774 F.2d 188,
195-96 (7th Cir. 1985) (rejecting plaintiff’s substantive-due-
process challenge to the city’s practice of conditioning
the release of stolen cars that had been recovered and
impounded by police upon the owner’s payment of towing
and storage fees because it was reasonable for the City to
apportion particularized law-enforcement costs to those
individuals who receive the most direct and substantial
benefit from that law-enforcement action). Evaluating
the legitimacy of these fiscal interests and weighing them
against an individual’s competing interest in regaining
his property is not, and never has been, a concern of the
Fourth Amendment. To paraphrase Wilkins, a government’s
decision regarding how and when to return once lawfully
obtained property “raises different issues, which the text,
history, and judicial interpretations of the Fourth Amend-
ment do not illuminate.” Wilkins, 872 F.2d at 194.
  At bottom, Lee’s complaint against the charging of tow-
ing and storage fees concerns the fairness and integrity
of the criminal-justice process, and does not seek to con-
strain unlawful intrusions into the constitutionally pro-
tected areas of the Fourth Amendment. See United States
v. Wilson, 540 F.2d 1100, 1103 (D.C. Cir. 1976) (“[I]t is
fundamental to the integrity of the criminal justice process
that property involved in the proceeding against which
No. 02-1503                                                15

no Government claim lies, be returned promptly to its
rightful owner.”). It is axiomatic that property once seized,
but no longer needed, should at some point be returned
to its rightful owner. Id. Equitable principles would dic-
tate as much. Id. at 1103-04 (“[The] district court . . . has
both the [equitable] jurisdiction and the duty to return
the contested property here regardless and independently
of the validity or invalidity of the underlying search and
seizure”); see also United States v. Martinson, 809 F.2d
1364, 1369-70 (9th Cir. 1987) (entertaining equitable
jurisdiction over motions to return property seized when
no criminal proceedings are pending against the movant
and collecting cases regarding the same); Illinois v.
Hermann, 501 N.E.2d 842, 845-47 (Ill. App. Ct. 1986)
(entertaining defendants’ motion for return of property
seized under Illinois Criminal Code when all criminal
proceedings against defendants had been concluded). What
is more, the government should not, by virtue of its au-
thority to seize, effect de facto forfeitures of property
by retaining items indefinitely. See United States v. Pre-
mises Known As 608 Taylor Ave., 584 F.2d 1297, 1302 (3d
Cir. 1978).5 But we know that due-process guarantees
would prevent this, by requiring the government to bring
forfeiture proceedings against the seized property and
to bring them without unreasonable delay. See id. at
1302; cf. In re Search of Kitty’s East, 905 F.2d 1367, 1371,
1375 (10th Cir. 1990) (discussing potential First Amend-
ment limitations to continuing to hold property alleged
to be obscene). And in conducting a due-process analysis
to decide how, when, and under what terms the property
may be returned, the Fifth and Fourteenth Amendments’
texts, histories, and judicial interpretations can better aid


5
  Other courts have likened continued retention of evidence as
a taking without just compensation. Lowther v. United States,
480 F.2d 1031, 1033-34 (10th Cir. 1973). Lee makes no such
argument before this Court.
16                                             No. 02-1503

a court in balancing the competing interests at stake. See,
e.g., Miller, 774 F.2d at 195-96; Stypmann v. City & County
of San Francisco, 557 F.2d 1338, 1342-43 (9th Cir. 1977)
(finding city’s practice of establishing possessory lien for
towing and storage fees without opportunity for hearing
deprived owners of due process). Indeed, Lee raises a
substantive-due-process challenge here, and we address it
below. For all the reasons discussed, we believe this is the
better approach.
  In sum, we conclude, as did the Sixth Circuit in Fox, that
Soldal’s “meaningful interference with a possessory inter-
est” definition is limited to an individual’s interest in
retaining his property. Once an individual has been mean-
ingfully dispossessed, the seizure of the property is com-
plete, and once justified by probable cause, that seizure
is reasonable. The amendment then cannot be invoked
by the dispossessed owner to regain his property. There-
fore, Lee’s car was seized when it was impounded. The
car’s subsequent search was completed after ten days.
Conditioning the car’s release upon payment of towing
and storage fees after the search was completed neither
continued the initial seizure nor began another.


  B. Substantive Due Process
  Lee next argues that the City’s procedure violated his
substantive-due-process rights under the Fourteenth
Amendment; he does not raise a procedural-due-process
challenge. Although Lee has now identified the proper
constitutional theory implicated by the City’s practice,
we ultimately hold that he cannot make out a claim for
recovery under it.
  Both the Supreme Court and this Court have “emphasized
how limited the scope of the substantive due process
doctrine is.” Dunn v. Fairfield Cmty. High Sch. Dist.
No. 225, 158 F.3d 962, 965 (7th Cir. 1998) (citing Washing-
ton v. Glucksberg, 521 U.S. 702 (1997)). Accordingly,
No. 02-1503                                               17

substantive due process is not “a blanket protection against
unjustifiable interferences with property.” Schroeder v.
City of Chicago, 927 F.2d 957, 961 (7th Cir. 1991). Unless
a governmental practice encroaches on a fundamental
right, substantive due process requires only that the
practice be rationally related to a legitimate government
interest, or alternatively phrased, that the practice be
neither arbitrary nor irrational. See Glucksberg, 521 U.S.
at 728. And when a substantive-due-process challenge
involves only the deprivation of a property interest, a
plaintiff must show “either the inadequacy of state law
remedies or an independent constitutional violation” before
the court will even engage in this deferential rational-
basis review. Doherty v. City of Chicago, 75 F.3d 318, 323-
26 (7th Cir. 1996); see also Wudtke v. Davel, 128 F.3d 1057,
1062 (7th Cir. 1997) (“[I]n cases where the plaintiff com-
plains that he has been unreasonably deprived of a state-
created property interest, without alleging a violation of
some other substantive constitutional right or that avail-
able state remedies are inadequate, the plaintiff has not
stated a substantive due process claim.” (quotations
omitted)).
  Because Lee’s substantive-due-process claim does not
implicate a fundamental right and involves only the
deprivation of a property interest, he must show as
an initial matter either that state-law remedies are in-
adequate or that an independent constitutional right has
been violated. Doherty, 75 F.3d at 325-26. Indeed, we
recently rejected similar substantive-due-process claims
by vehicle owners who alleged that the City had wrong-
fully held their vehicles at an auto pound and had damaged
the vehicles during the towing and storage process be-
cause the plaintiffs failed to make either of these requisite
showings. Gable v. City of Chicago, 296 F.3d 531, 541 (7th
Cir. 2002); see also Holstein v. City of Chicago, 29 F.3d
1145, 1149 (7th Cir. 1994) (dismissing plaintiff’s sub-
stantive-due-process challenge to city’s post-tow administra-
18                                                    No. 02-1503

tive proceedings because “in order to properly allege a
violation of substantive due process, the plaintiff must
at least show ‘either a separate constitutional violation
or the inadequacy of state law remedies.’ ”). Like the
plaintiffs in Gable, Lee cannot make either showing here.
As discussed above, he cannot state a claim under the
Fourth Amendment. And far from alleging the inadequacy
of state-law remedies, Lee has asserted pendant state-
law claims for bailment, trespass, and wrongful conver-
sion. See also Gable, 296 F.3d at 540 (discussing available
state-law remedies).6 Consequently, Lee has not made a
substantive-due-process claim.


6
   One argument Lee could have raised in an attempt to preserve
his substantive-due-process claim but did not, probably because
it is counterintuitive to his interests, is that charging towing and
storage fees for investigative impoundments was authorized by
state statute. The City, in fact, asserts this statutory authority,
citing section 4-203 of the Illinois Motor Vehicle Code, which
states “[w]hen a vehicle removal from either public or private
property is authorized by a law enforcement agency, the owner
of the vehicle shall be responsible for all towing and storage fees.”
625 ILL. COMP. STAT. 5/4-203 (2002). Given the self-evident
knowledge that the police may “conduct otherwise permissible
searches [and seizures] for the purpose of obtaining evidence,” cf.
Warden v. Hayden, 387 U.S. 294, 306 (1967), the argument would
proceed that the unchallenged seizure of Lee’s car was an “autho-
rized” vehicle removal within the statute’s plain meaning. But cf.
Illinois v. Searle, 427 N.E.2d 65, 68 (1981) (finding section 4-207
inapplicable to release of motorcycle seized and detained be-
cause it lacked an identifiable manufacturer’s identification as
required by law). If this argument is correct, and we do not hold
here that it is, then it would appear that this statutory author-
ity would render any state common-law remedies unavailable.
Without the benefit of argument or brief, however, we decline
to resolve the issue here. But if Lee were to discover his state
common-law claims barred by statute, our holding here would
not bar him from raising a substantive-due-process challenge at
that time.
No. 02-1503                                               19

II. Rule 12(b)(1)
  Having determined that Lee has failed to state a claim
for which relief can be granted under § 1983 by alleging
that the City’s towing and storage fees violated his con-
stitutional rights, we next evaluate whether he has sat-
isfied his burden to establish standing to contest the
constitutionality of the City’s spray painting of his car. We
review a district court’s decision to grant or deny a Rule
12(b)(1) motion to dismiss for lack of standing de novo.
Doe v. County of Montgomery, Ill., 41 F.3d 1156, 1158
(7th Cir. 1994).
  In ruling on a motion to dismiss for want of standing,
the district court must accept as true all material allega-
tions of the complaint, drawing all reasonable inferences
therefrom in the plaintiff’s favor. Retired Chicago Police
Assoc. v. City of Chicago, 76 F.3d 856, 862 (7th Cir. 1996).
The plaintiff, as the party invoking federal jurisdiction,
bears the burden of establishing the required elements
of standing. Id. (citing Lujan v. Defenders of Wildlife, 504
U.S. 555, 561 (1992)). Those elements are (i) an injury
in fact, which is an invasion of a legally protected inter-
est that is concrete and particularized and, thus, actual
or imminent, not conjectural or hypothetical; (ii) a causal
relationship between the injury and the challenged con-
duct, such that the injury can be fairly traced to the
challenged action of the defendant; and (iii) a likelihood
that the injury will be redressed by a favorable decision.
See Lujan, 504 U.S. at 560-61. If standing is challenged
as a factual matter, the plaintiff must come forward
with “competent proof ”—that is a showing by a preponder-
ance of the evidence—that standing exists. Retired Chi-
cago Police Assoc., 76 F.3d at 862.
   The City here argues, and the district court agreed, that
it is challenging Lee’s standing as a factual matter, which
triggered Lee’s burden to come forward with competent
20                                               No. 02-1503

proof of standing. The City isn’t challenging whether
Lee owned the car before it was towed. He did. Or, for
that matter, the City isn’t challenging whether the car
is once again Lee’s. It is. But the City does challenge
whether Lee had a property interest in the car at the
time it was spray painted. According to the City, Lee’s
car was no longer his after the expiration of thirty
days from its impoundment. If Lee’s property interest in
the car divested after thirty days, the argument goes,
the City had the authority to crush it, sell it at auction,
or otherwise dispose of it as the City saw fit. And if the
City decided to spray paint inventory numbers on the
car upon the thirty-first day to ensure that it would later
dispose of the proper car, so be it—it could do with “its” car
as it pleased. Since Lee never alleged, let alone intro-
duced any evidence, that the City spray painted the car
before the thirty-first day, the argument concludes that
he has failed in his burden to prove standing with compe-
tent evidence.
  We are not persuaded. We do not believe that the City
has raised a factual challenge, and, as such, conclude
that Lee’s only burden was to plead sufficient facts to
confer standing, which he did. The City’s attempt to raise
a factual challenge is premised on an erroneous legal
conclusion; namely, that Lee lost all property interest in
his car at the end of thirty days.
  Although property rights are protected by the U.S.
Constitution, they are created by applicable state and
local law. See, e.g., Bd. of Regents of State Colleges v. Roth,
408 U.S. 564, 577 (1972). Specifically, property rights
“are created and their dimensions are defined by existing
rules or understandings that stem from an independent
source such as state law—rules or understandings that
secure certain benefits and that support claims of entitle-
ment to those benefits.” Id. Accord Ulichny v. Merton Cmty.
Sch. District, 249 F.3d 686, 700 (7th Cir. 2001). So, we turn
No. 02-1503                                                 21

to those provisions of Illinois law that the City advances
in support of its argument.
  The City relies upon the Illinois Motor Vehicle Code
for its authority to dispose of a car as it wishes after it
has held the car for thirty days. Specifically, it cites section
4-208(a):
    Disposal of unclaimed vehicles.
        (a) . . . whenever an abandoned, lost, stolen or
        unclaimed vehicle, . . . remains unclaimed by the
        registered owner, lienholder or other legally enti-
        tled person for a period of 15 days after notice has
        been given under Sections 4-205 and 4-206 of this
        Code, the vehicle shall be disposed [as provided
        by law.]
625 ILL. COMP. STAT. 5/4-208(a) (2002). Lee argues that
the provision is inapplicable—and that the City had no
authority at all to dispose of his car—because the stat-
ute refers only to “abandoned, lost, stolen, or unclaimed
vehicles.” He argues that a car seized for evidentiary
purposes is not abandoned, lost, or stolen and that the
car was not “unclaimed” within the meaning of the stat-
ute because Lee had repeatedly attempted to retrieve his
car once the City had completed its search.
  We agree with Lee’s position. First, the City assumes
that until it released the car to Lee upon payment of a
portion of the towing fees or his successful pursuit of a
hearing, Lee’s car remained “unclaimed” within the mean-
ing of section 4-208, triggering the City’s right to dispose
of the car and, by implication, the loss of Lee’s property
interest. Contrary to the City’s assumption, reclamation
does not depend upon release. The two are treated as
separate and distinct actions under the Act.
  Under section 4-207(a), an owner may reclaim his vehicle
“[a]ny time before [it] is sold at public sale or disposed of
22                                               No. 02-1503

as provided in Section 4-208 . . . by presenting to the
law enforcement agency having custody of the vehicle
proof of ownership or proof of the right to possession of
the vehicle.” 625 ILL. COMP. STAT. 5/4-207(a) (2003). Noth-
ing in that subsection conditions reclamation upon the
payment of towing and storage fees. Rather it is only the
release of an owner’s car that is conditioned upon payment
of those fees. Section 4-207(b) states that “[n]o vehicle shall
be released to the owner, lienholder, or other person under
this section until all towing, storage, and processing charges
have been paid.” Id. 5/4-207(b).
  The clear import of this distinction in the statutory
language is that an owner may alleviate the threat of loss
or destruction of his car by properly asserting entitlement
to the vehicle even if he lacks the funds to arrange for the
car’s immediate release. By alleging that he attempted
repeatedly to retrieve his car by asserting his right to
possession, Lee has pled sufficient facts to give rise to the
inference that he had reclaimed his vehicle within the
meaning of the Code. By definition, after he “reclaimed” his
vehicle, it was no longer “unclaimed” within the meaning
of section 4-208, and since it is agreed that Lee’s car was
not abandoned, lost, or stolen, the City could no longer
pursue disposal. Although the City characterizes its re-
fusal to dispose of Lee’s car once the notice period had
expired as an act of administrative grace, that disposal
proceedings should have halted was in fact mandated by
statute.
  Second, even if we were to ignore the statutory distinc-
tion between reclamation and release, section 4-207 makes
clear that the owner of the car may reclaim the car at
“any time before” it is sold at auction or disposed. Id. 5/4-
207(a) (emphasis added). This means that regardless of
the expiration of the notice period triggering the City’s
ability or authority to sell or dispose the car, the car owner
still possesses some residual property interest that can be
No. 02-1503                                                    23

invoked until the moment of actual sale or disposal. In
other words, at most a car owner’s property right be-
comes defeasible upon the expiration of the notice period.
It does not dissipate altogether. And that defeasible
property interest expires only upon the completion of a
sale or disposal.7
   Accordingly, Lee maintained a cognizable property
interest in his vehicle throughout the City’s possession of
it. Since the City’s position was based on an erroneous
legal conclusion, it has raised no factual challenge, and
Lee has pleaded sufficient facts to confer standing to
challenge the City’s spray painting of his car.
  The City argues in its brief that should we reach this
conclusion, we should proceed to evaluate its argument
that Lee fails to state a claim for relief under § 1983 to
challenge the City’s spray painting of his vehicle. Before
the district court, the City had alternately moved under
Rule 12(b)(6) to dismiss Lee’s spray-painting claim on the
grounds that he failed to allege municipal liability, but
the district court did not reach the issue, having granted
the City’s Rule 12(b)(1) motion to dismiss for lack of
standing. The City argues that on remand to the district
court, they would once again move to dismiss Lee’s spray-
painting claim under Rule 12(b)(6), and that the issue
would inevitably wind up before us, where our review would


7
   Alternatively, section 4-207(a) can be read to grant the owner
a statutory right to redemption of the vehicle that extends until
the completion of the auction sale or other disposal in accordance
with Illinois law. Cf. Colon v. Option One Mortgage Corp., 319
F.3d 912, 919-20 (7th Cir. 2003) (discussing the equitable and
statutory redemption rights granted to homeowners and mortgag-
ors under Illinois law). A redemption right is a “significant
property interest.” See In re Brown, 126 B.R. 767, 770 (Bank. N.D.
Ill. 1991); see also In re Cook County Treasurer, 706 N.E.2d 465,
468 (Ill. 1998).
24                                              No. 02-1503

proceed de novo. Johnson v. Martin, 943 F.2d 15, 16 (7th
Cir. 1991). In the interests of judicial economy, the City
asserts, we should endeavor to forgo this subsequent ap-
peal and reach their arguments that Lee’s spray-painting
claim fails to state a claim under the Fourth or Fourteenth
Amendments.
  Notwithstanding the fact that the City’s argument
has some weight—it is likely, given our evaluation of his
claim against the City’s towing practices, that Lee will
be unable to show that his car’s spray painting consti-
tuted a Fourth Amendment violation or that state-law
remedies are inadequate—we are foreclosed from resolving
the issue here. First, this Court has unequivocally stated,
that without cross-appeal, an appellee may not “attack
the decree with a view to either enlarging his own rights
thereunder or of lessening the rights of his adversary,
whether what he seeks is to correct an error or to supple-
ment the decree with respect to a matter not dealt with
below.” United States ex rel. Stachulak v. Coughlin, 520
F.2d 931, 937 (7th Cir. 1975) (quoting United States v. Am.
Ry. Express Co., 265 U.S. 425, 435 (1924)). A ruling grant-
ing a motion to dismiss for lack of subject matter jurisdic-
tion is not on the merits, see Winslow v. Walters, 815 F.2d
1114, 1116 (7th Cir. 1987), whereas a dismissal under Rule
12(b)(6) would be. Accordingly, the City seeks to enlarge its
rights and supplement the district court’s decree with a
ruling on the merits that was not reached below. It cannot
do this without filing a cross-appeal.
  Second, although the City did advance a Rule 12(b)(6)
argument in front of the district court, that argument
was only that Lee had failed to allege facts giving rise
to municipal liability under the Monell standard. See
Monell v. Dept. of Social Servs., 436 U.S. 658, 694 (1978).
Here, the City advances arguments that the car’s spray
painting was not a Fourth Amendment seizure and that
Lee has failed to allege that available state-law remedies
No. 02-1503                                              25

are inadequate. Even if we were to consider a merit deci-
sion, the City cannot advance arguments not raised before
the district court for the first time on appeal. See Kyle v.
Morton High Sch. Dist. 201, 144 F.3d 448, 454 (7th Cir.
1998); Oates v. Discovery Zone, 116 F.3d 1161, 1168 (7th
Cir. 1997).
  As a result, we remand Lee’s spray-painting claim for
further proceedings. We note that since a federal claim
will be once again be before it on remand, the district
court’s stated reasons for denying supplemental jurisdiction
over Lee’s state-law claims pursuant to 28 U.S.C. § 1367
are no longer valid.


                     CONCLUSION
  Conditioning a car’s release upon payment of towing and
storage fees does not equate to a “seizure” within the
meaning of the Fourth Amendment. And because Lee
has failed to show that traditional state-law remedies
cannot provide him with adequate avenues for relief, he
cannot make a claim that this practice violates his
substantive-due-process rights. If any error is to be found
with this practice, we suspect that the case-by-case anal-
ysis afforded by the common law provides the appropriate
opportunity to remedy it, without having to announce new
constitutional principles whose future application may
prove unmanageable or unwise.
  Regarding the City’s decision to spray paint inventory
numbers on impounded vehicles, we find that Lee has
alleged a cognizable property interest sufficient to confer
upon him standing to challenge the practice. Although
that interest may have become defeasible upon the expira-
tion of the notice period after impoundment, it had not
expired. Therefore, the district court erred when it deter-
mined that Lee lacked standing to bring a claim challeng-
ing the City’s spray painting of his car.
26                                               No. 02-1503

  The decision of the district court is therefore AFFIRMED
IN PART, REVERSED IN PART and REMANDED for proceed-
ings consistent with this opinion.




  DIANE P. WOOD, Circuit Judge, concurring. I agree with
the majority that Mark Lee has standing to contest the
constitutionality of the act of agents of the City of Chi-
cago in spray painting his car and that further proceedings
are warranted on this claim. I also agree that Lee’s sub-
stantive due process claim was correctly rejected by the
district court. With respect to both those aspects of the case,
I am happy to join as well in the majority’s rationale. It
is the Fourth Amendment claim that gives me pause,
although in the final analysis I too believe that Lee should
not succeed on this claim. For the reasons I explain be-
low, however, I think it undesirable to hold sweepingly
that the Fourth Amendment has nothing to do with the
reasonableness of the continued detention of property
after the rationale supporting the initial seizure no longer
holds. The implications of such a holding might end up
being broad indeed. I am also concerned that the legal
picture might have looked different if it had been more
complete, and Lee had presented a fully developed claim
under the Fifth Amendment’s Takings Clause. Taking
the Fourth and Fifth Amendment theories one at a time
gives rise to a risk that we might reject each one in turn,
thinking that the other would remain available to a
proper plaintiff. Even taking into account the fact that
constitutional gaps can and do exist, it is not a good idea
to create them inadvertently.
  Before turning to the Fourth and Fifth Amendment
arguments that could be postulated here, it helps to set
No. 02-1503                                                27

the stage. As the majority notes, Lee was a victim of a
stray shooting in the City of Chicago. There is no hint
in this record that he was anything but an innocent by-
stander, who happened to have some property (his car)
that was likely to be of use to the police in their investiga-
tion of a crime. There is also no hint that his car was in
an area restricted by any state or local law, such that it
was subject to towing and impoundment under well estab-
lished police powers. If the police had seized anything
else belonging to such an innocent bystander/victim, such
as a camera or a tape recording that might have proven
valuable to their investigation, no one would have as-
sumed that the City could charge a fee for the return
of the property. The question here, in a sense, is why
should a car be different? More fundamentally, the ques-
tion is whether there is any recourse for an innocent
party like Lee when the government takes his property,
initially for law enforcement purposes, and then refuses
to return it unconditionally when the original raison d’être
of the seizure has expired.
  Lee rested his principal hopes on the argument that
the Fourth Amendment’s prohibition against unreason-
able seizures offered a remedy for him. He made it clear
that he was not challenging the right of the police to ef-
fect the initial seizure. Instead, he focused only on the
constructive “second seizure” of his car, which took place
in the time period after the police no longer needed the
car, when the City was taking the position that it would
allow Lee to recover his car only upon the payment of the
same towing and impoundment fees that parking ticket
scofflaws and other traffic violators must pay. The major-
ity rejects the conceptual separateness of the “second
seizure,” and instead resolves Lee’s claim by relying on
this court’s long-time rejection of the idea of a “continu-
ing” seizure for Fourth Amendment purposes. See Wilkins
v. May, 872 F.2d 190, 194-95 (7th Cir. 1989). I am not so
28                                              No. 02-1503

confident that the Fourth Amendment is utterly irrele-
vant to the reasonableness of a decision to refuse to relin-
quish seized property once the government has no need
for it. Furthermore, if that is the path we are to go down, I
think it important to realize that we risk creating an
unwarranted gap in the constitutional protections that
exist with respect to governmental takings of property.
  I consider first the Fourth Amendment point that Lee
has urged before us. As the majority acknowledges, ante
at 4, Lee agrees that both the initial impoundment of
his car for evidentiary purposes and the delay between
the City’s seizure of his car and its completion of the
search of the car ten days later were reasonable for Fourth
Amendment purposes. As of the 11th day, however, the
City’s position was that Lee was not entitled to show up
at the auto pound and retrieve the car—at least not with-
out the usual payment in hand. To the contrary, he was
told that he either had to produce the money within the
next 20 days or so, or the car would be crushed or sold
at auction. It is at this point, Lee contends, that a second
seizure occurred. Moreover, this second seizure was unrea-
sonable, within the meaning of the Fourth Amendment,
because it was unsupported either by law enforcement
needs or by any of the laws that normally entitle police
to take someone’s car to the pound. Ransom, Lee claims,
should not be the price of recovering property that is
unlawfully held by the government.
  The City’s argument in response is that the demanded
payment had no impact at all on Lee’s freedom to recover
his car. But that cannot be right: if the City had told Lee
he could retrieve his car only upon the payment of
$100,000, or only if he signed the deed to his home over to
the City, he still would have been “free” in this sense to
get the car, but in my view, at least, such a condition
would be plainly unlawful. As a fall-back, the City also
argues that certain ancillary costs go along with seizures
No. 02-1503                                                29

of automobiles in particular—towing and storage are
not free services—and that it is entitled to apportion
those costs to the victims of crimes (whether or not they
wish to press charges). If this kind of apportionment is
constitutional, and if the only condition upon retrieval of
property is the payment of these reasonable ancillary costs,
then the affected person is indeed free to reclaim the
property as a legal matter.
   The City’s latter argument, in my view, comes closer to
providing a sound basis for resolving the Fourth Amend-
ment aspect of this case. First, it is well recognized that
the touchstone of the Fourth Amendment is reasonable-
ness. See Ohio v. Robinette, 519 U.S. 33, 39 (1996) (quot-
ing Florida v. Jimeno, 500 U.S. 248, 250 (1991)). We
have further noted that all individuals in society are
benefitted by law enforcement activities, and all (presum-
ably including crime victims) must therefore bear some
of the burdens that go along with police activity. See Miller
v. City of Chicago, 774 F.2d 188 (7th Cir. 1985) (uphold-
ing, over a substantive due process challenge, the constitu-
tionality of the City of Chicago’s assessment of costs for the
towing of recovered stolen automobiles as part of their
return to their rightful owners). Even so, the government’s
law enforcement interests surely do not confer on the police
a roving warrant to seize and keep any private property
they want, for however long they want to keep it. Our
task is to find the proper balance between those law
enforcement interests and the general citizen’s interest
in her property. I therefore disagree with the majority, to
the extent it has taken the position that the City’s inter-
est was primarily fiscal by the time Lee wanted to retrieve
the car. Instead, we need to look at the events as a whole.
Doing so, it is important to me that (1) the second seizure
was brief in duration, (2) the condition imposed on Lee
was only to pay the actual cost of the towing and storage
(i.e., an objectively reasonable sum), and (3) the City
30                                              No. 02-1503

never carried out its threat to destroy the car. (I do not
comment here on Lee’s other claim for the damage to
his vehicle while it remained in the City’s custody, as I
agree with the majority’s disposition of that part of the
case.) On these facts, I would say that there was no
Fourth Amendment violation commencing with the second
seizure, because whatever continued seizure occurred in
this particular situation was not unreasonable.
  The majority, however, has chosen to rule broadly that
the Fourth Amendment has nothing to say about a seizure
beyond the instant when that seizure occurs. I agree that
the Second Circuit’s decision in United States v. Jakobetz,
955 F.2d 786 (2d Cir. 1992), and the Sixth Circuit’s deci-
sion in Fox v. Van Oosterum, 176 F.3d 342 (6th Cir. 1999),
are of limited utility here, because both the facts and the
legal contexts were different. I am not convinced, however,
that simply saying that a seizure is a temporally limited
act, see ante at 9, is enough to resolve the question. How
short a time period are we talking about? The word “sei-
zure” also implies that the property is being held long
enough to ensure that it will not be recaptured. At the
other end of the spectrum would be a permanent taking
of the property. This, the majority agrees, would amount
to a de facto forfeiture. Ante at 15. It assumes that the
government would not do this without the proper forfei-
ture proceedings, brought within the proper time, but I
am not so sanguine. Lurking just below the surface of
Lee’s case is the knotty problem of what can be done
about this set of cases.
  One possibility, endorsed by some, would be to find a
Fourth Amendment violation in the continued retention
of the property. See generally Fern Lynn Kletter, Destruc-
tion of Property as Violation of Fourth Amendment, 98
A.L.R.5th 305 (2002). If Wilkins indeed imposes the instan-
taneous view of “seizure” on us, then that avenue will not
be available in this court. See also Reed v. City of Chicago,
No. 02-1503                                              31

77 F.3d 1049, 1053 (7th Cir. 1996). Yet it is troubling
indeed to think that no remedy at all exists for people
whose property is taken by the government and not prop-
erly returned. The question is what can that remedy be,
if the Fourth Amendment does not provide it?
  The obvious candidate, as the majority notes in footnote
5, ante at 15, is the Takings Clause of the Fifth Amend-
ment, as incorporated against the states by the Fourteenth
Amendment. Chicago, Burlington & Quincy R.R. v. City of
Chicago, 166 U.S. 226 (1897). The Fifth Amendment to the
Constitution states that “private property shall not be
taken for public use, without just compensation.” U.S.
CONST. amend. V. The Takings Clause has been held to
apply to two types of governmental action: first, the taking
of physical possession or control of an interest in property
for some public purpose; and second, regulations prohibit-
ing private uses. See Tahoe-Sierra Pres. Council, Inc. v.
Tahoe Reg’l Planning Agency, 535 U.S. 302, 321-23 (2002).
The first kind of action is part of the inherent sovereign
power of eminent domain. Regulatory takings, by contrast,
occur without the formalities of eminent domain: they
result from the state’s general powers to impose regulations
that, in effect, condemn some or all of the use of the prop-
erty and thereby diminish the value to its owners to such
an extent that it is as if the government had condemned
the property.
  Viewed from a takings perspective, Lee suffered from
the former kind of taking: governmental authorities phys-
ically took some of his personal property for a public
purpose and kept it for a period of time. The fact that
the taking (which occurred after the permissible seizure
was over) was temporary rather than permanent is of no
consequence. The Supreme Court has made it clear that
compensation is required even when the government’s
physical occupation is temporary. See Tahoe-Sierra, 535
U.S. at 322; see also First English Evangelical Lutheran
32                                               No. 02-1503

Church v. County of Los Angeles, 482 U.S. 304, 318 (1987)
(collecting cases).
   Looking briefly at Lee’s (hypothetical) takings claim, we
would begin with the question whether he had a prop-
erty interest in the item taken. As of the time the City’s
need for the car ended, there can be no doubt that he did.
Even the City has argued only that his interest was termi-
nated at the end of the thirty-day period, and the majority
has shown in the standing portion of its opinion that
Lee continued to have a defeasible property interest in the
car even after that. Second, the government must have
actually taken the property. This is not a formalistic in-
quiry about title; instead, a claimant need only prove
that “property,” in the sense of “the group of rights inher-
ing in the citizen’s relation to [a] physical thing,” has been
“taken.” United States v. General Motors Corp., 323 U.S.
373, 378 (1945). Any physical occupation is enough, even
where the owner retains at least some use. See Loretto v.
Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426-28
(1982). Nor, as I have already noted, does the duration of
the impoundment matter for a physical taking. Duration of
the restriction is “one of the important factors that a
court must consider in the appraisal of a regulatory tak-
ings claim,” Tahoe-Sierra, 535 U.S. at 342 (emphasis
added), but the duty to compensate an owner for a physical
taking is “categorical,” id. at 322. Third, a physical taking
must be for a public use. But that element goes to the
legitimacy of the government’s taking to begin with; if a
taking is not for a public purpose, the government has no
right to complete the act of eminent domain. See, e.g.,
Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 241 (1984)
(“[O]ne person’s property may not be taken for the bene-
fit of another private person without a justifying public
purpose, even though compensation be paid.”) (citing
Thompson v. Consol. Gas Corp., 300 U.S. 55, 80 (1937)). In
any event, the City here makes a public use argument
No. 02-1503                                                33

both about its need to retain or destroy cars in its pound,
and so that element is not likely to be problematic in Lee’s
case.
  If a plaintiff in Lee’s position proceeds under a theory
that she has suffered a temporary taking, then she might
seek to recover two different kinds of compensation. First,
she might seek compensation for the reasonable value of
the use of the car during the period that it was held by
the City after the initial seizure was finished. The usual
measure of “just compensation” in such a situation is “the
property owner’s loss rather than the government’s gain.”
See Brown v. Legal Found., ___ U.S. ___, ___, 123 S.Ct.
1406, 1419 (2003); see also Boston Chamber of Commerce
v. City of Boston, 217 U.S. 189, 195 (1910). “Just com-
pensation” might therefore require the City to reimburse
the plaintiff for the cost of renting a car in the meantime, or
the cost of alternate means of transportation. Second, a
plaintiff might seek compensation for damage caused to
her vehicle—in Lee’s case, the spray-painting—during
its temporary use by the City. This latter form of compensa-
tion for damages incurred while in the government’s pos-
session was squarely upheld by the Supreme Court in
General Motors. 323 U.S. at 378.
  I do not mean to suggest in this discussion that Lee, or
any other particular plaintiff, would necessarily prevail
on a Fifth Amendment Takings claim. Some courts have
ruled, at least in the context of relatively limited reten-
tions of property, that nothing legally cognizable has been
“taken” from the plaintiff because all citizens have a duty
to assist the police. See, e.g., Eggleston v. Pierce County,
64 P.3d 618, 623-24 (Wash. 2003); Emery v. State, 688
P.2d 72, 79-80 (Or. 1984). Other courts have disagreed.
See Wallace v. City of Atlantic City, 608 A.2d 480, 483
(N.J. Super. Ct. Law Div. 1992). The Supreme Court held,
in the rather different context of the duty of an incarcer-
ated material witness to assist the law enforcement au-
34                                               No. 02-1503

thorities, that no takings claim had been stated because
citizen contributions to criminal investigations are in the
nature of a public duty. See, e.g., Hurtado v. United States,
410 U.S. 578, 588-89 (1973). Hurtado, however, speaks
narrowly of the “giving of testimony” and “attendance upon
court,” id., and it is not clear that the Court meant to
extend its holding to the temporary forfeiture of property
that was no longer needed by the police.
  The City might also point out that in rem forfeitures
of property used for illicit purposes are non-compensable
exercises of the government’s police power. See, e.g., Calero-
Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 680,
686-87 (1974); Bowman v. United States, 35 Fed.Cl. 397,
404 (1996); United States v. One 1979 Cadillac Coupe
de Ville, 833 F.2d 994, 1000-01 (Fed. Cir. 1987); see also
C.J. Hendry Co. v. Moore, 318 U.S. 133, 137 (1943) (noting
long, pre-Founding history of forfeiture of property used
in violation of the law). But there is nothing in these
cases to indicate that in rem forfeitures of the property of
innocent bystanders are equally acceptable. See Bowman,
35 Fed.Cl. at 404; Froudi v. United States, 22 Cl.Ct. 290,
297-98 (1991); see also Federal Ins. Co. v. United States, 11
Cl.Ct. 569, 570-71 (1987) (analyzing but reserving judg-
ment on the question whether “the Government can ef-
fect a taking by holding the property of an innocent by-
stander as evidence in a criminal investigation”).
  Moreover, while the circuits are split on the question
whether damages are available as part of a motion under
FED. R. CRIM. P. 41(e) for return of property that is dam-
aged, transferred, or lost while in government posses-
sion pursuant to a criminal investigation, compare Mora
v. United States, 955 F.2d 156, 160 (2d Cir. 1992); United
States v. Martinson, 809 F.2d 1364, 1367-68 (9th Cir. 1987)
(damages available), with Okoro v. Callaghan, 324 F.3d
488, 491 (7th Cir. 2003); United States v. Hall, 269 F.3d
940, 943 (8th Cir. 2001); United States v. Potes Ramirez,
No. 02-1503                                                35

260 F.3d 1310, 1316 (11th Cir. 2001); United States v.
Jones, 225 F.3d 468, 470 (4th Cir. 2000); United States v.
Bein, 214 F.3d 408, 413 (3d Cir. 2000); Pena v. United
States, 157 F.3d 984, 986 (5th Cir. 1998) (damages not
available), the sticking point in those cases has not been
whether the plaintiff must internalize the costs of crim-
inal investigations because of the use of the property in
illicit conduct or out of public duty. It has instead been
whether sovereign immunity prevents recovery of dam-
ages at all—an issue not implicated in a suit against the
City.
   Other arguments might also be available to both Lee
and the City. Because the issue was not raised or briefed,
there is no reason to explore every last detail at this point.
My principal point is simple: the protection of private
property is a high enough value in the Constitution that
I would hesitate long before I concluded that there were
no constitutional restrictions on the State’s power to
seize property and keep it (or to do the equivalent by
imposing such a costly condition on the recovery of the
property that it is functionally unavailable to the owner). At
least when the “second seizure” characterization is apt,
I believe that the Fourth Amendment’s prohibitions against
unreasonable seizures are triggered. To the extent that
the Fourth Amendment does not speak to the issue, I am
reassured that today’s opinion leaves open the possibility
of finding in a proper case that a plaintiff might be able
to assert a claim under the Fifth Amendment’s Takings
Clause.
  I respectfully concur.
36                                        No. 02-1503

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—5-22-03
