Cynthia Kernats v. Thomas O'Sullivan

Before ROVNER, FLAUM and Circuit Judges, CRABB, Chief Judge.* District * Crabb, The Honorable Wisconsin, B. Barbara of the Western sitting District of by designation. Court, seeking County Circuit ings in Cook Judge. FLAUM, Circuit premises. possession rent and the back (and of her members Kemats Cynthia granting Uthe an order entered The court complaint family)1 filed five-count stayed posses- sought, relief he landlord, her former against § 1983 U.S.C. until order November sion the of Vil- Uthe, members various and Carl seek- Department Police Tinley Park lage began of Uthe Saturday, November On al- declaratory relief2'for damages and ing that the Kernats to ensure making efforts under the rights their of leged violations by though posting premises, vacated Spe- Amendments. and Fourteenth Fourth County Sheriff that with the Cook fee a cash the defen- alleged that cifically, the Kernats under Illinois required to do day, he as unreasonable an actions constituted dants’ the court’s or- to obtain enforcement law seizure unreasonable persons, an his Instead, into took matters Uthe der.3 prop- search an unreasonable property, the Kernats’ barging into own hands pro- due of substantive erty, a violation and through personal their rummaging and home state claim pendent They also filed cess. whether to determine in an belongings effort de- The wrongful eviction. for against Uthe by midnight. prepared to leave they were Fed. dismiss to filed motions fendants Kernats, made Uthe with the conversations court 12(b)(6), the district R.Civ.P. if family out to throw threats several pen- also dismissed The court granted. own volition go of their they failed to subject matter lack of claim dent state 12:01 a.m. Kernats Cynthia appeal, jurisdiction. On Kernats tele- day, Cynthia Later defen- of two judgments in favor contests Department Tinley Park Police phoned Police and dants, O’Sullivan Thomas Officer authority to legal had the out Uthe to find Wade, I and IV on Counts J. Chief James their the Kernats forcibly remove affirm. complaint. We (named in individual An unidentified home. Doe”), representing complaint as “John I. command”, in officer the “senior himself as un- reviewing a dismissal purposes of For evict them Cynthia that Uthe could informed allega- 12(b)(6), factual we take the der Rule the involve- authority, without his own on as true. complaint of the Kernats’ tions Department. the Sheriffs ment of entered the Kernats April, Sometime went, and Carl Uthe Midnight came home of a lease one-year, into a written 1:30 approximately At far behind. Park, was not Illinois. The Tinley Village of posted Uthe Sunday, December a.m. May on on premises occupied the Kernats signs around the house Trespassing” “No three the first well for went and all a.m., An- 9:00 Around garage. however, and on Kernats, failed months. husband), tele- (Cynthia’s pay- drew September rent August and make their verify department police phoned occa- financial difficulties ments because self-help to accom- use Uthe could whether befell two problems that by medical sioned believed An individual eviction. plish the pursuant September On their children. Andrew informed Silkas landlord, Robert be Officer 5/9-209, the Kernats’ 736 ILCS was-improper and self-help eviction ten-day notice Uthe, a landlord’s served Carl place an eviction have his ten landlord After of back rent. demanding payment An- Department. with Sheriffs ini- order payment, Uthe expired days without another was transferred drew then entry and detainer proceed- forcible tiated events detailed to the all times relevant 3.At plaintiffs were listed as All of the Kemats 1. § 3-6019 dele- ch. 34 complaint, Cynthia is a only Kemats Ill.Rev.Stat. complaint, original executing judg- enforcing duty appeal. gated the party to this County of Cook of the Circuit ments request- prayer relief Although the Kemats’ provision of Illinois County. No Cook Sheriff relief, apparent that seek- declaratory it is ed only departments to police permitted local state rights have been finding civil judgments. entry and detainer forcible enforce damages. in the form and relief violated department at the who informed him about certain relating officers to the presently Uthe was at the station filing a events of December 1 and threatened to in- trespass complaint criminal him asked press form the of the incident. Later that call back later. Andrew Kernats subse- day, Cynthia Andrew and Kernats met with quently telephoned the police department ev- Chief Wade and an special unidentified inves- ery p.m. hour until 3:00 at which time he tigator. Wade copy showed the Kernats a spoke Officer James Montgomery. unsigned letter, report pre- incident Montgomery stated that Uthe could evict the pared by O’Sullivan, Officer and various oth- Kernats himself Tinley and added that a er documents. The Kernats per- were not Park officer stopping by would be letter, mitted to photocopy though they Kernats’ home to discuss situation. were allowed to examine it long for as they desired. After presented the Kernats p.m., About 4:30 Officer Thomas O’Sullivan their account of transpired what on Decem- arrived at the Kernats’ residence and was ber Wade his possible offered view that a by met at Cynthia the door Kernats. O’Sulli- “miseommunieation may between shifts” van identified himself as the Watch Com- have caused an temporarily officer to mislead mander and entered the Kernats’ house. the Kernats into thinking they house, vacate Once the inside O’Sullivan looked premises the or be arrested for criminal hallway down a tres- and commented that it did pass. Wade also Tinley stated that “all Park appear not to him that the Kernats were Police Officers knew of the prohibition preparing to move. O’Sullivan next told against evicting Finally, tenants.” Cynthia Wade told that was “her own they fault that the Kernats that he would contact present them the situation” and threatened again after reviewing the matter. everyone to arrest family the did not premises the vacate evening. later, About a week Wade sent a letter to response, Cynthia informed O’Sullivan of her the thanking Kernats them meeting for understanding County Cook him and further explaining department’s forcibly Sheriff could evict a tenant. O’Sulli- resolution of the matter. Wade detailed the replied van that he “did care about the steps by taken department to convince County Cook Sheriff’ pointing and to his Uthe to contact the Department Sheriffs and badge, Wyatt Earp-like stated fashion attributed the apparent conflict between Tinley “this Park and that’s you what town O’Sullivan and the Kernats to a communica- in, town, my are town, and my you when in tion breakdown a misinterpretation and you do as I tell ... everyone therefore better O’Sullivan’s actions and intentions. be out I before return this evening.” by Unsatisfied response, Wade’s the Ker- departed O’Sullivan then and Uthe re- nats sued Chief Wade and Officers Mont- premises turned shortly thereafter. Doe, gomery, and O’Sullivan under U.S.C. Spurred by threat, O’Sullivan’s the Kernats § seeking damages declaratory and re- family hurriedly attempted to remove as lief for rights violations their un- many personal of their belongings possi- der the Fourth and Fourteenth Amend- ble, though some of property was de- ments. Specifically, they alleged that stroyed process. in the Uthe monitored the defendants’ actions constituted an unreason- move, Tinley police and Park vehicles period- (Count persons I), seizure of an unrea- ically drove throughout residence (Count sonable II), seizure of property evening. At 2:00 a.m. the move was com- (Count unreasonable search property. III), plete, though the Kernats were unable to and violation process substantive due find a temporary residence where the whole (Count TV). complaint The also named Carl stay together. could Uthe as a defendant in rights the civil counts On Tinley December Park Police (Count Chief pendent V) in a state law claim James J. Wade contacted Andrew wrongful eviction. The various defen- requested that he come to dants filed motions to dismiss Fed. station to anonymous discuss an 12(b)(6); re- letter R.Civ.P. which the district court ceived Village that made allegations granted. The court dismissed Counts I and power discretionary goes abuse of ground neither the Kernats be- on the II by any property yond scope had been seized of his or her nor their will III dismissed usually Count performed the defendants. have been under color of allege a complaint failed to because purposes state law section 1983 liabili- re- the Kernats’ residence. With search of course, every ty.”). pow- Of official abuse of IV, ruled that the spect the court to Count er, unreasonable, unjustified, even if or out- process due claim must Kernats’ substantive rageous, to the level a federal does rise satisfy less fail of their failure because deprivation. constitutional See Carter v. required for a Fourth stringent standard Buscher, (7th Cir.1992). 973 F.2d The court dismissed Amendment violation. may simply Some such conduct violate state Uthe, a-private rights against claims civil perfectly legal, tort or indeed citizen, allege complaint failed to though unseemly reprehensible. conspiracy Uthe and between the Kernats failed to state officers. Because § step analyzing first officers, any of against a claim court identify specific claim is to constitutional against Chief also dismissed the claims Wade Oliver, right allegedly infringed. Albright v. alleging a on the basis constitutional violation — U.S.—,—, con- alleged ratification of the officers’ of his (1994) (plurality opinion L.Ed.2d 114 Finally, having disposed of the duct. federal C.J.) (citations omitted). Rehnquist, In this claims, pendent state the court dismissed instance, allegation primary is that Kernats’ subject jurisdiction. lack of matter claim for violated her Fourth Amendment O’Sullivan Cynthia only appeal, contests On Kernats right to free from unreasonable seizures. defendants, judgments in favor two Officer particular, In contends that what Police James J. Thomas O’Sullivan and Chief began police-citizen as a consensual encoun Wade, complaint. I on Counts and IV their ripened complied ter into a seizure when she below, For stated we affirm the the reasons ultimatum that her with O’Sullivan’s judgment of district court. premises or quickly vacate the face arrest responds and confinement. O’Sullivan that II. seizure, and, did amount to a his conduct not “[Bjefore may a defendant be held did, qualified is entitled to even he 1983], § liable under that defen [42 U.S.C. immunity his actions did not violate because possess power dant must virtue of first clearly law. The district court established law, way in power state then misuse not the Kernats had ade concluded rights.” federal constitutional violates upon quately a claim based an stated Belcher, 410, (6th Christian v. 888 F.2d 414 attempt made “no Cir.1989) original); (emphasis see also Sol position — their ... with the [ ] to reconcile Ill., U.S.—,—, County, dal v. Cook law, which finds ‘seizure’ within ease 538, 6, 113 543 n. 121 L.Ed.2d 450 S.Ct. 184, 81 the Fourth Amendment when meaning of (1992); 167, Pape, v. 365 Monroe U.S. person to he or circumstances lead a believe 473, (1961), 482, 5 492 over S.Ct. L.Ed.2d ” Op. to leave. Mem. at she was free grounds, Dept. ruled on Monell v. other original). (emphasis in The court there 1178 Services, 658, 2018, 436 Social U.S. 98 S.Ct. fore address O’Sullivan’s did need (1978). Supreme 56 As the L.Ed.2d 611 immunity Our review of qualified defense. stated, firmly “[i]t established court’s dismissal under Rule the district § in a 1983 acts under a defendant suit 12(b)(6) novo, Tissue Center is de Northwest posi color he of state abuses Cir.1993). (7th Shalala, 522, A 1 F.3d 527 v. v. given tion him the State.” West immunity qualified 42, 49-50, 2250, defendant raise Atkins, 487 U.S. 108 S.Ct. dismiss, (1988) Monroe, but at this 2255, in a motion defense (citing 40 101 L.Ed.2d 476); stage proceedings facts before 172, 365 at 81 S.Ct. at see also U.S. (6th complaint, Tackett, 693, alleged in us are those Cassady v. 938 F.2d 700 Cir.1991) J., obliged accept Albright, true. part are as (Engel, concurring and we — 810; (“[A] —, 114 Me- dissenting government official’s S.Ct. part) U.S.

1176 (7th Haskins, 292, explained F.2d 292 right allegedly Donald v. 966 violated must Cir.1992). “clearly have been in “particu established” larized” sense and “[t]he contours of the qualified the doctrine of Under im right sufficiently must be clear that a reason munity, “governmental performing officials official would understand that he what discretionary functions are shielded lia doing right” violates at the time bility damages for civil insofar con 635, 639-640, incident. 483 U.S. 107 S.Ct. duct does not violate established stat 3034, 3038-39, (1987); 97 L.Ed.2d 523 see utory rights or constitutional which rea Rice, 1449, also Auriemma v. 910 F.2d 1455 sonable would have known.” Harlow (7th Cir.1990) (en denied, banc), cert. 501 800, Fitzgerald, 818, 457 102 U.S. S.Ct. 1204, 111 S.Ct. 970 L.Ed.2d (1982); 73 L.Ed.2d see also (1991). delimiting right, the contours of a — U.S.—, Holloway, Elder S.Ct. point closely we look first to law on or in case (1994). Harlow, Since analogous “permit[s] areas because it us to objective employed courts have test for reasonably diligent government conclude that determining public whether official defen law, officials would have known the case qualified immunity. dants are entitled to See hand, related it to the situation at and mold Associates, Robinson, Triad Inc. v. 10 F.3d ed their conduct accordingly.” Lojuk v. (7th Cir.1993). objective stan Johnson, Cir.1985), 770 F.2d protects public dard interest deter denied, cert. compensation rence for an official’s (1986). course, L.Ed.2d 795 Of this does not safeguarding unlawful conduct while the offi plaintiffs mean that must direct the court ability cial’s to make difficult decisions “with “precisely a ease that is on all fours on the independence and without fear of conse here;” facts and law involved Landstrom v. Harlow, quences.” 819, 102 atU.S. Dep’t Servs., Illinois Family Children and of (citing Ray, 547, at 2739 Pierson v. 386 U.S. (7th 670, Cir.1990), indeed, 892 F.2d 676 one 554, 1213, 1218, 87 S.Ct. 18 L.Ed.2d 288 need not cite a case at all if the constitutional (1967)). stated, qualified As this court has violation is obvious. See Eberhardt v. O’Mal immunity “gives public officials benefit of (7th Cir.1994) (“This ley, 1023, 17 F.3d 1028 doubts,” Thomas, legal Elliott v. 937 F.2d elementary is such an of violation the First — (7th 338, Cir.1991), denied, 341 cert. U.S. Amendment that the of reported absence a —, 973, (1992), 112 S.Ct. case with similar facts nothing demonstrates by decide, relieving them having from at widespread compliance more than with well- peril, judges their financial how will decide recognized principles.”); constitutional see Kmetko, future v. Greenberg cases. 922 F.2d Streeter, (7th 145, also Nelson v. 16 F.3d 151 (7th Cir.1991). 382, 385 Cir.1994); Haskins, v. McDonald 966 F.2d (7th 292, a Cir.1992); Once defendant pleaded has a Murphy 295 K.H. ex rel. qualified immunity, (7th Cir.1990). of appropri 846, defense v. Morgan, 914 F.2d 851 approach ate for courts to using case, issue -In though, the usual courts review ex (1) analysis: two-step alleged law, isting Does the con focusing particularized case on (2) set duct out a constitutional legal violation? and facts principles, and concrete to discern clearly Were the clarity constitutional standards es “the of the state of the law in relation question? tablished at the time in See Sie the defendant’s conduct at the time the gert 226, 231-232, Gilley, v. Triad, 500 U.S. 111 conduct occurred.” 10 F.3d 496. 1789, 1793, (1991); S.Ct. doing, L.Ed.2d 277 In identify so courts must not too City Milwaukee, Donovan v. abstractly 17 F.3d generality of level of rele (7th Cir.1994). plaintiff “rule”, McDonald, legal bears the vant 966 F.2d establishing burden of “[governmental existence of employees a because must clearly established right. obey constitutional Ra in the law force at time but need Wade, evolution, kovich 850 F.2d predict its need not know (en Cir.) banc), denied, cert. 488 U.S. fight between broad and narrow read (1988). 109 S.Ct. ings precedent L.Ed.2d reading will broad Creighton, Anderson v. Supreme Greenberg, Court become ascendant.” 922 F.2d at whole, they no doctrine Kernats’ seizure claim made as a Viewed immunity allegation they barri- were not free to leave erects substantial qualified presence so because plaintiffs, appropriately premises or the of Officer er immunity “designed to shield any qualified O’Sullivanat time. The court did articu- plainly incom- immunity ‘all civil but the unusual nature of the Kernats’ late knowingly who violate the those petent they claim—that were seized not because (citations Donovan, 17 F.3d at 952 home, law.’” they were not their free leave omitted). they rather because were not free to remain gave no there—but the claim further consid- deny may not' shield We O’Sullivan cite eration view the Kernats’ failure to immunity Kernats estab- unless can qualified any theory. support case law novel 1,1991, of December O’Sullivan’s lish that as established conduct violated view, In our district court need Ker- rights under the Fourth Amendment. inquiry ed into the an exhaustive to conduct additional that “after nats concedes has, date, authority, been basis the Kernats’ Fourth Amendment she search any directly theory point.” Although on the Kernats’ to locate case seizure claim. unable course, (as concede), deficiency, of is not Br. at 18. This novel is indeed the Su we must determine fatal itself because preme post-Mendenhall pronounce Court’s immunity light of all relevant qualified ments have restated and refined the frame parties cited precedents—both those allegations through work Kernats’ Elder, we ourselves. and those discover analyzed. First, the should have been Cf. — at-, (holding at 1Ó21 purposes applying recognized that for qualified immunity appellate review objective coercion, person has test in light of all dispositions is to be conducted no of an encounter desire to leave scene simply those cited to precedents, relevant police, degree “the to which a reason court). by the district or discovered or she could leave would feel he is not an accurate measure of the coercive a Fourth Amend stated Bostick, effect of the encounter.” Florida (1) con ment cause action O’Sullivan’s 435-36, (2) the sei duct constituted “seizure” situation, (1991). In such a 115 L.Ed.2d zure, occurred, if one was “unreasonable.” a appropriate inquiry is whether reason “the Donovan, 17 F.3d at 948. As an initial mat free the person would feel to decline ter, every we must in mind that encoun bear the request otherwise terminate officer’s or police and is not a sei ter between citizens for a “con Id. This test calls encounter.” Ohio, 1, 16, zure, Terry v. 392 19 n. see U.S. all approach,” that takes into account textual 1868, 16, 1878 n. 88 S.Ct. surrounding inci of circumstances the the (1968), unreasonable, unjustified, and even or Chesternut, Michigan v. 486 U.S. dent. See pro outrageous by an officer is not conduct 1975, 572-573, 1978-79, 567, 100 108 S.Ct. by hibited the Fourth Amendment if it does (1988); Delgado, 466 v. L.Ed.2d 565 I.N.S. (or, in appropriate a not involve seizure 1762, 210, 215, 1758, 80 U.S. case, search). Buscher, See Carter v. 973 (1984); Spring 247 United States v. L.Ed.2d Cir.1992). (7th 1328, F.2d 1332 United er, (2d Cir.1991); 1012, 1016 946 F.2d United Mendenhall, Supreme v. Court States (6th Rose, 1490, v. 889 F.2d 1493 States “[a] the test for seizure as follows: stated Cir.1989) (“What on a restraint constitutes meaning within the person has been ‘seized’ liberty prompting person to conclude if, only Amendment in view of of Fourth vary with the he not free to leave will is surrounding all circumstances the inci setting in police conduct at issue and the dent, person a reasonable would have be occurred.”). Supreme conduct he 446 lieved that was not to leave.” free factors that 1870, 1877, has identified a number of 100 64 U.S. S.Ct. occurred, J.) (1980) Stewart, that a seizure has might suggest (opinion 497 L.Ed.2d person who have been (emphasis Applying the where supplied). Menden- even leave, including: attempt test, dismissed the seized did hall district court 1178 threatening presence question, of several offi- gen this- like constitutional matters

cers, officer, erally, display weapon degree.” an is “one Cohan v. Com Revenue, physical touching 540, some of the missioner Internal 39 F.2d (2d Cir.1930) citizen, (L. J.). Hand, language or use of or tone of 545 While this indicating compliance nothing voice with the does not mean that in the area can established, request might compelled. officer’s be ever factual setting unique aspects, in non-trivial Mendenhall, 554, U.S. at 100 at 446 S.Ct. cases, parallel no clear in other the relevant (citations omitted). 1877 Lower courts have point strongly constitutional factors must list, example to this for deeming added transgressions the direction of constitutional prolonged person’s personal retention of a immunity before is lost. Feldman v. request by accompa or a effects an officer to Cf. Bohn, (7th 730, Cir.1993), 12 peti F.3d 733 ny police police him to the or a station room (June filed, 7, cert. tion 62 3844 U.S.L.W. See, e.g., to be relevant considerations. 1994). law, In seizure we believe that two 1016; Springer, 946 F.2d at United v. States overarching emerge themes from the eases: Battista, (D.C.Cir.1989). 876 F.2d 205 (1) the degree nature and official exclusive, they While these factors are not (2) inducement, and the extent of the restric appropriate starting point form our tion on the citizen’s desired freedom of move Second, inquiry. empha the Bostick Court ment. The first themes these reflects the only personal liberty sized restraints on action, type threatening police as noted in by police conduct caused are relevant to the Mendenhall, ignoring and the cost of analysis; Fourth Amendment seizure inde demands, official’s while the second (such informs pendent cramped factors as the con options whether the citizen had reasonable bus) of a fines crowded weigh should not sure, available to him. To be our construct 435-37, our calculus. 501 U.S. at S.Ct. perfect dichotomy does not form a 2387; Jordan, United States 951 F.2d some relevant factors will influence both ar (D.C.Cir.1991). And, finally, does, however, inquiry. It organize eas D., v. Hodari California way ingredients bearing useful the critical 1547, 113 (1991), L.Ed.2d 690 the Court on the main issue here—whether O’Sullivan’s objective stated measure was itself authority, response show and the it in requirement finding a threshold for the duced, amounted to a unconstitutional sei additionally of a and that the citizen zure. “actually yield must to a show physically or be touched As imply, the Mendenhall factors D., police.” 625-26, Hodari intimidating coercive behavior tends 1550; Voida, 111 S.Ct. at Tom v. F.2d support compliance a belief that com Jordan, Cir.1992); 951 F.2d at Tackett, pelled. Cassady See 938 F.2d Thus, 1281.4 our colleagues on the D.C. (6th Cir.1991) (decided July noted, Circuit have it is clear after D. Hodari 1991). An example extreme of such behavior only that “not must the encounter meet Cassady, was demonstrated in one of the few objective subjective test of a coercion but one in our cases located research that in also subjection.” Id. alleged volved the plaintiffs restraint of the clearly Was it established in by the freedom movement an official threat. that the compliance Kernats’ with Cassady, O’Sulli the executive director a multi- pack up county jail van’s order to brought § and leave the against a 1983 claim or house face arrest and county jailer detention at some alleging the that she was forced unspecified later in evening time the was a to barricade herself her office when the indicates, seizure? As jailer the above discussion deputies, brandishing his after test, 626-27, fleeing suspect—even 1551; 4. this a Under one U.S. at 499 County 111 S.Ct. at Brower v. who is confronted with Inyo, an obvious show au- 489 U.S. thority—is (1989) not seized until (noting his freedom of move- 103 L.Ed.2d 628 that by ap- suspect ment plication been terminated pursuing police an intentional a who had eluded cars physical by suspect's lights flashing twenty force or with miles was not D., authority. roadblock). submission to the asserted Hodari seized until fatal into his crash a telephoned a request hus from kill and her anee with a to her weapons, threatened ques- to band, present at the time. to come the station house officer who was Circuit, may noting threats seizure. tioning “[t]he that constituted an unreasonable Sixth effectively as fet Cassady may Acknowledging confined the officer have have call, ters,” concluded that Cassa- during F.2d at verbally been abusive jury from dy presented evidence no seizure court nevertheless concluded that mean illegal (1) within the might find an place had taken for three reasons: Id. at 698. ing of the Fourth Amendment. physical the officer and the distance between the Kemats remained at Had O’Sullivan (2) citizen; distancing inherent in the issuing the gun drawn after home with his connection; telephone tenuousness of threat, strong would be the claim of seizure (3) Rodgers could have the ease with which er—and, importantly, more perhaps more up Significantly Id. hung phone. at Cassady. See established here, added that purposes for our the court McDonald, (indicating that a F.2d at to secure an arrest war- the officer’s threat circuit be suffi single from another case appear to did not rant if the citizen refused finding clearly estab support a cient change because the citizen “was the outcome Turner, law); but see Kikumura lished just [the do officer] free demand Cir.1994) (“[W]e do not F.3d Rodgers up have at Id. ended that.” ‘clearly estab can a matter think we declare he questioning station for whether of one case based on the existence lished’ ignored or command. obeyed officer’s circuit.”). ease, In this from another to understate dif- we do not wish While milder coercion was extent of O’Sullivan’s voluntarily walking ference between though present Cassady, this than handcuffs, being dragged there in station and not mean that fact itself does of- we the choice O’Sullivan believe ease, the In the instant were not seized. jail— your goor fered—move out of house allegations support a least rea Kernats’ likely compliance than more to induce his inference that O’Sullivan issued sonable Rodgers—come down the choice offered to indicating that “tone of voice command your own volition the station might compliance compelled,” ... Men arrest. denhall, 554, 100 S.Ct. at finding a sei weighs in favor of factor that Even if we conclude that nature however, time, a number zure. At same degree inducement were of O’Sullivan’s present are countervailing factors also severe, calculus weigh must we still on the was the sole officer here—O’Sullivan that inducement restrict the extent to which displayed weapon scene5 and he neither It is of movement. ed the Kemats’ freedom plaintiff. nor laid hands on the inquiry repeating this is inextrica worth we bly the coercive factors intertwined with course, sum of official induce Of preceding paragraphs; in the considered itself, the threat ment includes overlap though the circumstances relevant consequences that would flow also the considerations, Among other differs. focus A threat becomes complying with it. temporal and especially look to the here we non-compliance the cost of more coercive as attempted restraint. spatial aspects of the compliance; relative the cost increases Florida, 811, 105 Hayes thus, expect citizen’s that a it is reasonable (1985), a case cited comply an official whether decision Kemats, inferentially supports at least be both the command would informed significant space that time and are our view proposition place. the hard This rock and determining seizure whether a factors may by comparing the instant be illustrated ap Hayes, police In officers place. taken Towing Ser Rodgers v. Lincoln case with him (7th Cir.1985). his home and asked vice, proached a citizen at Inc., The 771 F.2d 194 station compli- accompany them the alleged Rodgers that his plaintiff any the Kemats’ and Tinley pa- contact between complaint Park further does state that 5. The occasionally later department. drove the house trol cars member of allegation any evening, though there no questioning. The initially citizen refused directing persons away from an accident request, changed but his mind after the scene, offi- permitting them to travel any- cers threatened to arrest him. Supreme where else the world but that one small Court reversed the conviction subsequently area, surely has used show of authority to obtained, stating that: gain compliance command, with his though [0]ur view continues to be fine of one no would suggest the officer has permitted by conduct the Fourth Amend- pedestrians seized the and motorists who had ment is crossed police, when the without to cross the street go or around the block probable warrant, cause or a forcibly re- pursuant to his course, orders. Of none of person move a from his home another these scenarios —both from the case law and place in which he is entitled to be and imaginations our identical —are transpoH him to the police station where case at Nevertheless, hand. they issues he is questioned detained and for investi- raise are relevant question to the gative purposes. whether a person reasonable would have felt 816,105 atU.S. 1646-47 (empha- free to decline request. O’Sullivan’s sis supplied). slight A variation on the facts case, In the instant we find that temporal of Cassady offers even more extreme spatial aspects of O’Sullivan’s example of an officially-imposed restriction of threat are much looser than typi- those that movement: assume that a group of armed cally characterize Fourth Amendment sei- officials, guns drawn, surrounds a citizen in Though zures. O’Sullivan was clear as to the doorway of her office and threatens who would be arrested and they where kill her. If that citizen then retreats into her taken, vague he was as to when the arrest office,locking the door and perhaps barricad- might place, take stating only that the Ker- ing well, it as it would be reasonable to nats comply must by some indeterminate conclude that she has been although seized time evening. Thus, lapse of time no one laid hands on her. It is enough that between the making and the execution of as a result of a prominent show authority O’Sullivan’sthreat would have been at least a she immediately confined to a small matter of a few addition, hours. O’Sulli- space with no viable means otherwise ter- departed van the scene immediately after minating the encounter. In contrast issuing (never his return). command Ac- Rodgers, supra (a case in which we knowledging compliance with O’Sulli- seizure), found no both Hayes and the exam- van’s demand that move out was an ple on Cassady based involved immediate task, onerous we still think it clear that the threats persons made by physically present Kernats, in Hayes contrast Mr. and Ms. who ready to carry out, them Cassady, did not have to make an instantane- leaving no room appeal, evasion, or com- judgment ous whether to submit or resist. promise. Indeed, Hayes and Cassady Especially in view of the fact that the Ker- situations illustrate the confluence of both nats had previously conflicting received ad- crucial elements of a seizure: pres- coercive vice about the authority anyone other than sure from state actors resulting signifi- in a the Cook County Sheriff to carry out an cant, present disruption targeted of the per- eviction, we find it at plausible least that a son’s freedom of view, movement. In our reasonable would have sought further typically involves an complete almost clarification (perhaps from the Chief of Po- restriction of movement —either laying lice, the State’s Attorney, private or even a hands (both or a close connection temporally lawyer). and spatially) between the show authority (as compliance when a We are officer mindful that these events took suspect tells a get in the place back squad weekend, over a that O’Sullivan identi- car but him). declines to handcuff As the fied himself as a “Watch Commander,” and extent of the limitation person’s on a desired that the Kernats had several minor children decreases, movement so (some too does the likeli- whom have poor been in hood that even coercive give health) action will factors that weigh would in —all favor rise to a seizure. For example, an officer of finding a seizure we actually 21, Amendment, S.Ct. at 88 Fourth so, ac- taking into Even matter. the decide what 1879-80, very little about tells us cannot at inquiry, we our of totality count the place. first in seizure the that O’Sullivan’s a is clear constitutes the law say that threat, “[o]nly con- that an arrest command, Moreover, Terry’s with statement coupled Amend- Fourth the force officer, by physical a seizure means of stituted when the with state cannot Although we also way re- ment.6 in some of or a show al- certainty that O’Sullivan’s degree of any con- citizen we liberty of a the strained the Constitu- violate not did leged conduct occurred,” n. id. at 19 a ‘seizure’ clude'that not law did is that tion, that matters all 16, opaque n. is too 16; 1878 far at his ac- of the unlawfulness clearly establish of O’Sulli- the unlawfulness have established conduct, if alleged While O’Sullivan’s tions. Hayes are Cassady and conduct. van’s of bully-like abuse true, arrogant, an was us or cited to closely analogous cases most elementary viola- an such it was not power, research, fore- but as the by our discovered the ab- that Amendment the Fourth tion of indicates, those of both going discussion is of no ease analogous precisely aof sence in our facts distinguishable from eases are F.2d Murphy, 914 ex rel. K.H. moment. See against allegations respects. The important a (“There section never been has at 851 a tort give state rise may well O’Sullivan selling fos- of officials accusing welfare ease emo- of infliction (perhaps intentional claim follow slavery; it does not into ter children imprisonment), or false tional distress cf. arose, would officials a ease that if such J., concur- (Engel, at 701 Cassady, 938 F.2d ease had previous no ... immune because be (citing dissenting part) and ring in part circumstances.”). those liability in found impris- false of elements of the the discussion Ker- argument, the at oral their briefs Keeton, The Law in Prosser & onment of sup- Terry v. Ohio heavily on nats relied Ed.1984)), at and even 47-49 Torts clearly established that contention port their Fourth Amendment day state a of the end itWhile actions. prohibited O’Sullivan’s case of the claim, considering the state proposition Terry stands that is true is) (and not law, claim was a such specific articulable of in the absence that dis- Accordingly, affirm the we established. basis as the relied an officer upon which facts Amendment Fourth Kernats’ of the missal might activity criminal his belief that of against O’Sullivan.7 claim arrest, violates seizure, afoot, of short a " lives, Op. at seized.” daily was enough their '[sjeizure' course, is alone Of 6. 1184. ‘unrea also liability; must he the seizure § 1983 " impli- view, is the Fourth Amendment In our Brower, sonable,’ S.Ct. at U.S. at a litigant raised credible only a cated balancing extent 1382-83, "by .as determined signifi- in a resulted coercion official claim Tennes for it." against the need intrusion of the cant, freedom his desired disruption of present 7-8, Garner, see so, ques- Even two Op. 1180. movement. allegations (1985). If these L.Ed.2d (2) if (1) there a seizure? tions remain — seizure, would we claim of a clear stated an- which are so, reasonable? —both itwas unrea finding seizure no trouble have had exami- a detailed context swerable sonable. indi- case. a As particular facts of nation seeking above, complaint a supra at cated extreme conclusion a more Judge Crabb draws directed police officer damages a because It intended. or analysis than is stated our from fail the scene accident plaintiff around fore- true, suggests, we would analyzed she is not be need "straight face” test Likewise, occur could many a seizure possibility that close the Amendment. Fourth under the deprived (e.g., Judge modicum a Crabb "when listed hypotheticals stay being single in one a able to loitering, line liberty associated form cease orders go remaining or area, stay free a condemned while clear of particular location construction long ...) way give rise to Op. This is at 1184. in no anywhere building, could stay else." etc. (a) however, "the concluding character innocuous way, complaint every implicated disruption. kind The Kernats’ compelled Amendment Fourth order,” disruption of move- op. at serious far more official compliance with an forced belongings and up pack deprivation of order 1185, (b) "any ment—an unreasonable view, at in our promptly that, to a home amounts vacate their force compelled official liberty — While, seizure. specter a true (c) seizure,” "to least raises op. prohibited notes, typical seizure involves opinion officially de- as our family was extent the Kernats of movement complete restriction an almost business ability go about prived of the 1182 tions),

III. and there no need for the district analyze court to further the case under the appeal The Kernats also the district of Fourteenth strictures Amendment. pro of due court’s dismissal their substantive alleging a Dismissal count substantive outset, we claim. At the note Su cess (and process proper per- due violation was preme. recent a “[a]s Court’s observation that haps required Albright). Graham and matter, always general has been Court expand concept reluctant to of substan IV. guideposts process tive due because the for Finally, we turn to the Kernats’ decisionmaking in responsible this uncharted § contention that Wade incurred 1983 Chief open-ended.” are and area scarce Collins v. liability on basis his ratification of — —, —, Heights, 112 Harker U.S. O’Sullivan’s actions. This claim is without (1992). 1068, 1061, 117 L.Ed.2d S.Ct. 261 merit. It well settled that the doctrine Thus, the has determined claims respondeat superior may employed not be alleging process substantive due violations impose liability supervisor § 1983 on for a appropriately analyzed are often more the conduct of a a subordinate violates specific guarantees more of the various rights. citizen’s v. constitutional Monell provisions Rights. the Bill See Al Services, 658, 691, Dept. Social U.S. — at—, bright, at U.S. S.Ct. 2018, 2036, (1978). S.Ct. 56 L.Ed.2d 611 Su particular ‘provides a “Where amendment an attach, however, pervisory liability may explicit pro textual source constitutional of. supervisor, knowledge where a aof against particular govern a tection’ sort of conduct, approves subordinate’s of the con behavior, Amendment, ment ‘that not the it. City duct and the basis for St. v. Louis generalized notion of more ‘substantive due 112, 127, Praprotnik, 485 U.S. process,’ guide analyzing must be the (1988); 99 L.Ed.2d 107 Fiorenzo v. No ” (citing Id. these claims.’ Graham Con (7th lan, Cir.1992); 965 F.2d Jones nor, 386, 395, 1865, 1871, 490 U.S. City Chicago, 856 F.2d (1989)). Graham, As in (“The Cir.1988) supervisors must know about allegation instant case involves an anof un it, it, approve conduct and facilitate con seizure, so lawful “there is no need differ it, eye done turn a or blind for fear of what entiate between so-called Fourth Amend see.”). they might Here the Kernats do not theory process, ment substantive due allege observed, directed, ignored, that Wade theory they are coextensive.” Al approved, way, participated any or even — —, bright, at S.Ct. at 831 knew about the incidents of November (Stevens, J., dissenting). The nature December or December allegations clearly falls within the ambit of taking place. complaint simply regulated by those activities the Fourth states that Wade “ratified” O’Sullivan’s con (even if Amendment within the duct when he met with the Kernats several prohibi- days of the Fourth ambit Amendment’s later when he wrote them a letter (something Judge successfully alleged akin what Crabb describes whether the Kernats search”), as "detention to a or submission we do unreasonable seizure under the Fourth Amend- Supreme ment.”). read Court’s cases recent preclude concluding given implicates that an official seizes some- Whether set of facts coercing place always one him to leave a in which Fourth Amendment is and been 1178; Chesternut, strongly prefer degree, supra would he We have remain. matter of at see 572-73, opinion any (stating also been unable to locate an 108 S.Ct. at 1978-79 way approach," other court that has held one other or the on that the test calls “contextual Indeed, any point this issue. on lack case that takes into all of account the circumstances compels qualified incident), immunity surrounding making the conclusion that it difficult (and appropriate dispositive) bright-line case and set this out tests in this area. Neverthe less, unnecessary today twilight things makes to decide whether zone in which are uncer (or plead the facts the Kernats would tain is finite we are itself confident that our not) 1181; give Op. analysis "reshapes" to a rise seizure. see also neither the Fourth Amend Judge concurring opinion ("Judge imposes, directly indirectly, Rovner's any ment nor new question obligations Flaum leaves unanswered the ultimate on state officials. ROVNER, Circuit DIAMOND ILANA justify O’Sullivan’s explain and attempting to concurring. course, any time, Judge, uncon- of By this actions. place taken may have that seizure stitutional in- join Judge Flaum’s to pleased I am could have and Wade accomplished been had existing Fourth Amend- of sightful discussion ex Wade’s fact. undo that to nothing done implications on Offi- and its seizure law ment the Kernats from attempt to dissuade post from Ker- qualified immunity cer O’Sullivan’s courts) (or the media to the taking their case explains, at the Judge Flaum nats’ suit. As is not behavior rationalizing O’Sullivan’s here, it was not conduct of the official time in a constitutional involvement type of alleged O’Sullivan’s that established liability. §to gives rise that violation public and power position of his of abuse Amendment. the Fourth violate trust would V. conclusion, Judge that Having reached alleged here scenario factual unique ques- ultimate unanswered leaves Flaum substantive us to consider required has alleged successfully Kernats tion of whether qualified doctrine and the of seizure under the Fourth seizure an unreasonable in jurisprudence immunity, bodies two unnecessary to his con- Amendment, it is as far more principles are relevant existing state of respect to the clusion with McDonald, applied. than easily stated Cf. quali- Judge Flaum’s fully I law. concur discussion foregoing As the F.2d at 294. separately analysis write immunity fied Fourth the relevant indicates, that we believe view, that, my a Fourth emphasize to the cir examine inquiry should Amendment Although, as was stated. claim Amendment voice, nature language, tone cumstances — “temporal out, and points Flaum Judge encounter, loca leading of the events alleged threat” aspects of O’Sullivan’s spatial the nature tion, timing light and —in typically characteriz- those looser than were the extent and inducement official (ante at seizures ing Fourth Amendment of desired freedom the citizen’s on restriction only of the function 1180), me a that seems time, recognizing same At the movement. the threatened ar- required avoid conduct announce “one not today’s opinion that that Ker- demanding was rest. O’Sullivan test whether fits all” size belongings, as well as up of her pack all nats that occurred, repeat our observation we children, them remove and her small the formu rigid adherence “too sometimes In of hours. a matter within premises appellate courts of the prescriptions laic context, constrained was Kernats that factual (which particular out are laid as to judgment an instantaneous make generaliz as seldom and are settings in mind Indeed, required. compliance was analysis.” whether proper blocks purported) as that to O’Sullivan intimated Brothers, Inc., Kernats F.3d Phillips Loyd v. conduct could County Sheriff Cir.1994). law had the Cook (7th the case Because re- eviction, alleged that O’Sullivan the unlawfulness clearly established not Tinley Park and time he she was as of the that alleged her minded actions O’Sullivan’s community. I qualified that the law in acted, entitled he was that O’Sullivan course, mean, caused would have response not This does immunity. believe position state not allegations do in Kernats’ the Kernats’ reasonable (we need and with- claim show Amendment Fourth to O’Sullivan’s submit afternoon, that we con question) Sunday reach this do not on attempting, out (we do alleged Police, behavior the State’s done O’Sullivan’s the Chief either contact typically not). immunity (See casts “qualified lawyer. But ante private Attorney, or a F.2d net,” Allphin, 786 Benson to return 1180.) a wide also threatened O’Sullivan Cir.1986), it covers O’Sulli here her evening to ensure remaining claims other The Kernats’ alleged van. and Kernats family gone, judg Accordingly, the merit. without were patrolling police cruisers Tinley Park district court ment re- her as she neighborhood view, my belongings. moved AFFIRMED. conduct here Hayes crossed the persons reasonable in the Kernatses’ situa- (see 1180), Florida line O’Sullivan, ante at tion to If they leave. cogniza- did have a effect, forcibly removed Kernats and her ble interest in staying, then have no family from their home legal without constitutional against claim Officer O’Sulli- Thus, to do so. were it necessary van, reprehensible as unprofessional and as to our today, decision I would hold that his threats have been. an unreasonable seizure in majority The seems suggest to that a “sei- violation of the Fourth Amendment. zure” can occur when a person deprived Contrary to what Judge sug Crabb has liberty the modicum associated being with gested in concurring her opinion, neither the able to stay particular in one location while majority opinion my nor own comments here remaining go stay free to or anywhere else. have anything done “reshape” to the Fourth Judge Rovner would explicit. make this I (See 1186.) Amendment. post In my agree the essence of deprivation the view, majority merely has given meaning in involved a forced detention is that Supreme Court’s focus in a number of person detained loses liberty go about Fourth Amendment cases on whether his places in business where he right has the “police conduct would ‘have communicated to majority be. argues The from this that person reasonable that [s]he was not at any deprivation unreasonable liberty com- liberty ignore police presence go pelled by official force prohibit- amounts to a ” about Bostick, [her] business.’ Florida v. seizure, ed and that to the extent the Ker- 429, 437, 2382, 2387, U.S. 111 S.Ct. nats family officially was deprived of the (1991) L.Ed.2d 389 (quoting Chesternut v. ability go about the daily business of their Michigan, 567, 569, 486 U.S. lives, family was However, seized. 1977, 100 (1988)); L.Ed.2d 565 see also Cali court cites no case which a court has read D., Hodari 499 U.S. fornia the Fourth Amendment this expansively. 1547, 1551-52, S.Ct. (1991). 113 L.Ed.2d 690 The lawyer Kernatses’ able could not find Supreme The Court has consistently utilized any such case can I. I neither know of this test without producing the dire conse case, ho example, for in which a court has quences Judge envisions, Crabb and I see held persons loitering on a street corner nothing that test that would preclude its were seized when told to leave or street application to circumstances such as those vendors operating without license were alleged here. seized when forced away from their chosen place of business. CRABB, Chief Judge, District concurring. I concur No result reached other court the ma- has ever reached the con

jority, I join but decline to opinion. clusion Judge I Rovner do would reach here. In stead, believe that the Fourth pro- Amendment courts have held that a seizure occurs analytic vides the framework when a person detained, for the is, Ker- when “in natses’ claim I prepared am not view of all hold the circumstances surrounding the that the was incident, “seized” within the mean- reasonable would have be ing of the Fourth Amendment even reason- lieved that he was not free to leave.” United persons in the same Mendenhall, circumstances States v. 544, 554, would have believed that Officer 1870, 1877, O’Sullivan’s S.Ct. (1980) (opin gave threats option them no J.) but to Stewart, leave ion of “From the time their rented home. my view, proper founding present, to the the word ‘seizure’ analysis of a claim like the Kernatses’ is has meant a ‘taking possession’.... For the Fifth and Fourteenth Amend- purposes most law, at common the word ments, to determine they whether had a merely connoted not grasping, or applying property interest in remaining prem- on physical to, force the animate or inanimate ises occupying. did, If they object then question, actually but bringing it it would be reasonable consider whether physical within control.” v. Ho California the officer’s threats were such compel D., to dari 111 out his Hayes been had forced (citations (1991) on whether omit- L.Ed.2d arrest, but wheth- by official threats house ted). him probable to take cause er can find that it acknowledges majority The him and detain there police station to the O’Sulli- such as holding that conduct no case outcome The investigative purposes. clearly estab- Kernatses’ van’s violated if the had come no different have been Amendment, the Fourth rights under lished him given field and Hayes upon at baseball has Supreme Court argues that coming them volun- choice of the same analysis of the the framework changed submitting to an deter- tarily arrest. To the extent claim.” “novel plaintiffs’ go made that he factor was minative Supreme Court majority believes for inves- to be police station detained to the encom- to concept of seizure a expanded the to a was forced leave- not that he- tigation, amount does not compulsion that pass official place. particular Not detention, respectfully. disagree I to a says it that majority is correct The Mendenhall since decided the cases one of ab- compulsion have found the courts understanding a sei- that the basic changes But arrest. “hands-on” an actual sence of to a submission requires detention zure only issue. Even reason- half the that is person instructed a involves Not one search. circumstances Kernatses’ persons location. particular to leave comply to compelled felt been would have Bostick, 501 v. in Florida true that It is to leave directives with O’Sullivan’s 2382, L.Ed.2d 429, 111 S.Ct. to a home, amount compliance must leave” “free (1991), to found the the Court meaning Fourth within seizure questioning to the analysis inapplicable view, not. The my it did In Amendment. leaving the a bus because aboard passengers leav- the Kernats required of act alternative anot reasonable bus was compelled They not were ing premises. the test described The Court passengers. In a search. or to to a detention to submit conduct “police as whether a seizure circumstances, Fourth Amendment these to a reasonable communicated ‘have would implicated. not is liberty ignore not he was person that this case majority’s approach to The his busi go -about presence ” into it areas Amendment law expand (quoting at 2387 Fourth Id. at ness.’ majority The to reach. intended was never Michigan, 486 U.S. Chesternut limit its char- (1988)). suggest that would not does 1975, 1977, 100 L.Ed.2d 108 S.Ct. only orders those test, of a acterization to leave” the “free recast Court Indeed, I involving home. of exclusion person’s which a fit the situation could a limitation way such in which see no indepen by a factor are confined movements therefore, frivolous, is justified. It remained The Court police conduct. dent kind any with equating a seizure suggest that which official the extent concerned raises compliance officially coerced detention to a amount forced actions un- evaluating reasonableness stated, specter of an the test the Court person. As orders Amendment the Fourth from der logically “follows in Bostick nounced scene, in a single line form a crime clear Id. ground.” no new breaks prior cases area, stay of con- out construction highway neither Certainly at 2387. 111 S.Ct. away from a conve- building or move demned suggests that the any other case nor Bostick every nience store. implicated in is Amendment Fourth official with an compliance forced kind of I, troubled, amas are My colleagues order. show force alleged unauthorized undeniably poi- by the O’Sullivan and holding in Officer emphasizes the Judge Rovner eviction the forced aspects of gnant Florida, Hayes v. did O’Sullivan If Officer family. (1985), it Kernats implying that L.Ed.2d arrogation of allege, his Kernatses person what forcing a conclusion that supports the are the position of his misuse Amendment a Fourth his home out of Rights Acts the Civil conduct of official kind Hayes was not fact, the focus violation. to address. intended On the other hand, wrong the actual done to the Kernatses CINCINNATI COMPANY, INSURANCE negligible. As difficult as their circum- Plaintiff-Appellant, were, they stances suffered nothing they would not have suffered had it been prop- STAR FINANCIAL BANK Central erly deputy authorized f/k/a sheriff who came to Company, Bank and Trust Merchants their door and directed them leave. The Muncie, National Bank of and United argue they Kernatses do had a Fidelity Guaranty States Company, & property right house; to remain in the rented Defendants-Appellees. the state had they court determined right no such and the sug- Kernatses do not No. 93-1160. gest enjoyed property right United States of Appeals, stay until proper official came to evict Seventh Circuit. them. Argued Feb. 1994.

The Kernatses contended that O’Sullivan deprived liberty them of a arising interest Sept. Decided out right of their together to live family as a family because the was unable to find alter housing

native to accommodate the entire

family night. agree I Judge Flaum proper

that it was for the district court to my dismiss this claim agreement rests on (the

the lack of merit of the claim temporary

breakup anot foreseeable actions).

result of Officer O’Sullivan’s I

would not dismiss it on of Al —Oliver, bright U.S.—, (1994), my con

viction that the Fourth Amendment does not

provide explicit “an textual source of consti protection”

tutional applicable to the conduct

alleged. at-, Id. 114 S.Ct. at 813. follow,

It does not either Kernats-

es’ unfortunate circumstances or from the

lack of a obtaining means of relief under 1983;

§ judicial that the response should be

to reshape the Fourth Amendment. As dis-

turbed as I situation, am Kernatses’ I

am more prospect disturbed sug-

gesting public employees in this indirect

manner that will prepared have to be

justify under a Fourth Amendment standard

any order that results in compelled compli-

ance.

Case Details

Case Name: Cynthia Kernats v. Thomas O'Sullivan

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Sep 16, 1994

Citation: 35 F.3d 1171

Docket Number: 93-3086

Court Abbreviation: 7th Cir.