Sometimes when you read a court opinion you imagine there’s a big gap between the objective, sterile words on the page and the reality of the situation.
The U.S. Court of Appeals for the Seventh Circuit’s opinion in O’Donnell v. City of Chicago, No. 24-2946 (Dec. 22, 2025) is one of those.
The words on the page reveal the court held that a Chicago ordinance which authorizes the city to seize vehicles for traffic violations — even other cars the violator owns — is not a taking because its “an exercise of the City’s police power to enforce its traffic code, and thus isn’t a taking.” Slip op. at 5. (We have problems with that conclusion, but more on that below.)
But reading the opinion gives a hint of the off-page reality on the ground.
Dig this. Get a traffic ticket in Chicago, and you can either challenge it or pay. If you don’t pay, or if you challenge and lose (and then have to pay), and you incur two more final violations the city can immobilize and every vehicle you own. Yes, even cars not involved the violation. And if you don’t pay up for the immobilization within 24 hours, the city may tow and impound all your cars (meaning the private towing and impound company with the city contract). Still don’t pay up? The city may sell or otherwise dispose of all vehicles.
We don’t know about you, but reading the opinion’s sterile description (see slip op. 2-3), gives us an ick feeling.
Anyone who has earned a traffic ticket or had your car towed knows what we mean. Especially those of you who have to deal with entrenched and seemingly-heartless apparatchicks, and really especially those who have dealt with private towing contractors and impound lots. A quick interwebs search reveal a lot of horror stories (such as this one , this one, and this one.
Once you are in the municipal traffic enforcement web, it is a difficult and soul-sucking effort to get out. So forgive us if we have some sympathy for the car owners/plaintiffs in this case, separate and apart from the merits of their legal challenge.
Back to the case. As noted above, the Seventh Circuit didn’t seem to apply any of the usual factors for considering a regulatory takings claim. Instead, the court focused on the nature of the power the city was exercising. If the city was exercising the police power, game over:
In Hadley v. City of South Bend, 154 F.4th 549, 554 (7th Cir. 2025), we considered a takings claim that—like this one—arose from a state’s exercise of its police power rather than eminent domain. Eminent domain traditionally refers to “a state’s power to physically take property by formally condemning it.” Id. The police power, conversely, refers to “a state’s general authority to determine, primarily, what measures are appropriate or needful for the protection of the public morals, the public health, or the public safety.” Id. (citation modified). As we acknowledged in Hadley, the takings analysis doesn’t draw “rigid distinctions between eminent domain and police power actions,” and every police power action may not bar a takings claim. Id. at 554–56 (citation modified). Nonetheless, we regarded the exercise of law enforcement authority as a “classic example” of police power that does foreclose takings claims. Id. at 556.
Slip op. at 4-5.
Hold on. As we have said here many times, the takings doctrine isn’t about the power being exercised, and courts are wrong to focus on the government power. See this post and this post, for examples. After all, we’re talking regulatory takings, not plain-old eminent domain takings. Regulatory takings by definition assert that the government’s exercise of some power other than its eminent domain power nonetheless has the same effect on the property owner as a plain-old eminent domain taking. Thus, the focus should be on the owner’s property rights, and whether and how the regulation or restriction the government imposes affects property rights.
Thus, we think the Seventh Circuit continues to get it wrong when it makes these kind of statements:
Applying that principle here, immobilizing, towing, impounding, and—if necessary—disposing of vehicles under § 9-100-120 is an exercise of the City’s police power to enforce its traffic code, and thus isn’t a taking.
Slip op. at 5.
This is very nearly a paraphrase of Justice Brandeis’s solo dissent in Pennsylvania Coal, where he argued that because Pennsylvania had a really good, super-duper, police power reason for adopting the Kohler Act, it just couldn’t be a taking. We don’t think that there’s much doubt that the Commonwealth was not acting arbitrarily and capriciously when it adopted the Kohler Act, because surface subsidence caused by overmining coal. But the majority concluded that despite the Commonwealth’s good reasons, the Kohler Act worked a taking.
We’re not suggesting that this should be the result here, merely that the court wrongly focused on the nature of the power the city is exercising and not the effects of that power on the property owners. Yeah, the city probably has the leeway to impose some pretty draconian measures and keep on ratcheting up the pain on non-paying traffic violators. At least our current due process mode of analysis would suggest.
But rather than analyze the property impacts, the Seventh Circuit imposed what looks like a categorical rule. If the government is enforcing the law (and when is it not?), no takings problem:
The threat of impoundment and disposal forces them to internalize the consequences of their behavior and, accordingly, deters those violations in the first place. See Tate v. District of Columbia, 627 F.3d 904, 909 (D.C. Cir. 2010). Because § 9-100-120’s function is to enforce the City’s traffic code, it’s the kind of law enforcement forfeiture scheme “firmly fixed in the punitive and remedial jurisprudence of the country” and does not constitute a taking. See id. (quoting Bennis v. Michigan, 516 U.S. 442, 453 (1996)) (finding that a scheme similar to the one here didn’t constitute a taking).
Slip op. at 5.
If there’s an Achilles’ Heel in the Seventh Circuit’s opinion it is this:
Finally, the plaintiffs err in relying on Tyler v. Hennepin County, 598 U.S. 631 (2023), to argue that the City commits a taking by retaining all vehicle sales proceeds without applying any of it to unpaid ticket debt. The principle at work in Tyler—that the government “may not take more from a taxpayer than she owes”—doesn’t apply here, where the government enforces laws pursuant to its police power. Id. at 639; see also Aldens, Inc. v. LaFollette, 552 F.2d 745, 749 (7th Cir. 1977) (noting that the police and tax powers are distinct and subject to different limitations). In sum, § 9-100-120 is an exercise of the City’s police power to enforce its traffic code, so the Takings Clause doesn’t apply and the plaintiffs cannot establish a federal or state takings violation.
Slip op. at 7.
In our thinking, the court is just plain wrong here. The Takings Clause doesn’t operate on a state or local government’s taxing power differently than it does on its police power. Or its eminent domain power. Or any local government power, for that matter.
O’Donnell v. City of Chicago, No. 24-2946 (7th Cir. Dec. 22, 2025)