Brian WHITE and Quentin McClinton, Plaintiffs-Appellants, v. CITY OF MARKHAM, Erik Lymore, Markham Chief of Police, Officer Muldrow, Markham Police, Star # 525, and Claudette Brooks Witcher, Defendants-Appellees.
No. 01-2034.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 13, 2002. Decided Nov. 13, 2002.
310 F.3d 989
William W. Kurnik (Argued), Michelle J. Hirsch, Knight, Hoppe, Kurnik & Knight, Des Plaines, IL, Donald Render-Kaplan (Argued), Chicago, IL, for Defendants-Appellees.
Before COFFEY, MANION, and WILLIAMS, Circuit Judges.
MANION, Circuit Judge.
Brian White and his son Quentin McClinton lived in a house owned by Brian‘s aunt, Claudette Brooks Witcher, under an oral agreement. During a verbal altercation with his aunt, White called the police for assistance. Officer Kenneth Muldrow of the Markham Police Department arrived on the scene and, after determining that Witcher was the owner of the residence, requested that White vacate the premises or face arrest. White and his son left the house and subsequently filed suit against the City of Markham, Officer Muldrow, Markham Chief of Police Eric Lymore and Witcher, alleging that they violated his Fourth Amendment right to be secure against unreasonable seizures, in violation of
Background
In 1999, Brian White and his son Quentin McClinton lived in a home owned by White‘s aunt, Claudette Witcher. White began living in the house, along with his mother and brothers, in January 1998 after a fire damaged their home. The extended family stayed in Witcher‘s home under a four-month written lease during the spring of 1998. At the expiration of the lease, White‘s mother and brothers moved out but White remained and was later joined by his son. They did not have a written lease to stay in the house, but instead had an oral agreement with Witcher, who did not live in the home, that White would perform chores, pay some of the utility bills, and protect the property in return for living there rent-free. They also agreed that White and his son would move out some-time after April 1, 1999 because Witcher was planning on remodeling the home. However, Witcher began to remodel her home prior to April 1. The construction project impacted several areas of the house including areas frequently used by White and his son. Interior walls were knocked out, the ceiling in one room was removed, and at least one wall connecting the interior of the house to the garage had a hole in it covered only by plastic.
On the morning of March 8, 1999, Witcher went to her house and told White and his son that they were no longer welcome to stay. A verbal altercation between the parties ensued and Witcher started throwing their belongings around the house. White called the Markham Police Department for assistance and Officer Kenneth Muldrow responded to the call. When Officer Muldrow arrived, he discovered
Officer Muldrow spoke with both of them about the condition of the house and called a building inspector, but learned that the inspector could not come to the house at that time. Officer Muldrow eventually determined that Witcher was the owner of the property and told White, while placing a hand on White‘s shoulder, that if he did not leave immediately, he would be arrested. White stated that he did not want to leave, and instead asked Officer Muldrow to talk to Dwight Levert, his attorney. Officer Muldrow declined to speak to Levert and repeated his threat to arrest White if he did not leave the premises. During this time, Witcher continued to yell at White and started throwing his personal belongings out of the house. After repeated threats of arrest, White and McClinton eventually took their personal belongings and left the house. Levert then called Markham Chief of Police Eric Lymore and asked him to intervene in the situation. Chief Lymore spoke to Levert about the situation but declined to intervene, stating that he would talk to Officer Muldrow later in the day to get his version of the events.
In May 1999 White and McClinton (hereinafter “plaintiffs“) filed a five-count complaint seeking damages pursuant to
Analysis
On appeal, the plaintiffs argue that the district court incorrectly ruled that the police officers who seized them were entitled to qualified immunity. They contend that it was well-established in March 1999 that forcing a family out of their home under threat of immediate arrest constituted an unconstitutional seizure under the Fourth Amendment. The plaintiffs also argue that the district court erred in granting the defendants summary judgment because of the existence of contested issues of material fact. Finally they argue that the grant of summary judgment was flawed because it was based upon the erroneous conclusion that a police officer acts lawfully if he participates in an illegal eviction when a property owner requests assistance in expelling non-owner residents.
A. Qualified Immunity
The plaintiffs contend that the district court erred in dismissing the claims against Officer Muldrow and Chief Lymore based on qualified immunity. This court reviews the grant of a motion to dismiss de novo, accepting all of the well-pleaded factual allegations contained in the plaintiffs complaint as true and drawing all inferences in favor of the complainant. See Crenshaw v. Baynerd, 180 F.3d 866, 868 (7th Cir.1999). We shall affirm the district court‘s dismissal of the complaint only if it appears beyond doubt that the plaintiffs cannot prove any set of facts that would entitle them to relief. See, e.g., Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Crenshaw, 180 F.3d at 868.
The Fourth Amendment provides that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”
In this case the plaintiffs claim that they were the subject of an unreasonable seizure because Officer Muldrow and Chief Lymore, operating under an illegal policy of Markham County, prevented them from staying in their home under threat of arrest. The plaintiffs present an interesting inversion of a theory of Fourth Amendment liability because they were free to leave at any time. White did in fact eventually leave the site of the altercation when he and his son packed up their belongings and left the house. In United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), the Supreme Court stated the test for a seizure as follows: “[a] person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” (Emphasis supplied.) White is not alleging that he was not “free to leave,” but rather thát he was not free to stay. In Florida v. Bostick, 501 U.S. 429, 436-37, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), the Court found the “free to leave” analysis inapplicable to a factual scenario involving the questioning of passengers aboard a bus because leaving the bus before it reached the passengers’ destination was not a reasonable alternative.
This is not the first time that we have examined this unusual theory of unreasonable seizure under the Fourth Amendment. In Spiegel v. City of Chicago, 106 F.3d 209, 210 (7th Cir.1997), we addressed the issue of seizure when officers prevented a former tenant from entering his former apartment, by then in possession of the landlord. In that case, Spiegel, who returned to his apartment after he had been evicted through a court order, was ordered by the police not to go to or into his former residence under threat of immediate arrest. Id. Of course he could not enter his apartment in any event because the locks had been changed. See id. at 211. In Spiegel we did not decide whether or not a seizure had in fact occurred, but ruled that qualified immunity attached due to the fact that the former tenant‘s “right not to have the police prevent him from entering an apartment that was in the possession of the landlord was not clearly established at the time the police blocked his attempt to enter.” Id. at 212.
A similar theory was also presented in Kernats v. O‘Sullivan, 35 F.3d 1171 (7th Cir.1994), where a landlord obtained an order of possession from a state court and ordered the tenants to leave the premises. See id. at 1173. When they failed to leave, the landlord asked the local police to cite the tenants for trespassing and a police officer (O‘Sullivan) came to the property and ordered the tenants to leave by the end of the day or face arrest. See id. at 1174. The tenants complied, apparently fearing arrest, and subsequently filed a
While Spiegel and Kernats presented a similar Fourth Amendment theory, this court has yet to resolve the issue of whether a seizure occurs when police, by threatening arrest, prevent a current or former resident from remaining on their premises. Of course, the resident was free to travel anywhere else. Similar to the plaintiffs in Kernats, White was in actual possession of the premises when he was asked to depart by the police, but unlike those plaintiffs White was not staying in the house under a written lease.1 Additionally, unlike Ker-
Alternatively, White argues that he was seized pursuant to our holding in United States v. Jerez, 108 F.3d 684, 691-92 (7th Cir.1997), where we applied the “free to terminate the encounter” test from Bostick (as opposed to the “free to leave” test from Mendenhall) in a finding that a seizure occurred when officers surrounded a suspect‘s hotel room, shone a light through the window and banged on the door in the middle of the night. In Jerez, we found that under the totality of the circumstances, a seizure had occurred because the plaintiff was confined in his hotel room by the police and was therefore coerced to open his door and face police questioning. See id. at 691-92. This case presents a legally different scenario from Jerez, however, because White was not trapped inside a home by uninvited police officers and then coerced to open the door, but instead was asked to leave his home by a police officer whom he himself had called to the premises. If Officer Muldrow had, in fact, arrested White and taken him to the police station and detained him there for investigative purposes, it is indisputable that a seizure would have occurred. See Hayes v. Florida, 470 U.S. 811, 816, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985) (“[O]ur view continues to be that the line is crossed when the police, without probable cause or a warrant, forcibly remove a person from his home or other place in which he is entitled to be and transport him to the police station, where he is detained, although briefly, for investigative purposes.“).
However, based on the facts alleged in the complaint, it is clear that White was not “free to terminate the encounter.” Additionally, based on Officer Muldrow‘s slight touching of White combined with the threat of immediate arrest if White did not comply with his order, it is apparent that White felt compelled to comply with Officer Muldrow‘s commands or face the consequences. See Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870. However, under this factual scenario, when the plaintiffs were free to leave and thereby terminate the encounter at any time it is unclear whether a seizure occurred. We do not need to answer that question because in this case, even if the plaintiffs’ encounter with Officer Muldrow could be labeled a seizure, the “seizure” was reasonable.
In cases such as this, where a traditional analysis of seizure “yields no answer, the Court must evaluate the search or seizure under traditional reasonableness standards by balancing an individual‘s privacy interests against legitimate governmental interests.” Wyoming v. Houghton, 526 U.S. 295, 299-300, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999) (citing Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 652-53, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995)). Whether or not a seizure is reasonable under this balancing act is determined by examining the totality of the circumstances. See, e.g., Illinois v. McArthur, 531 U.S. 326, 331-34, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001) (holding that preventing a man from entering his own home without officers accompanying him while they waited for a search warrant did not violate the Fourth Amendment as it was a reasonable seizure under the totality of the circumstances); United States v. Swift, 220 F.3d 502, 506 (7th Cir.2000). Based on the allegations contained in
When Officer Muldrow arrived he was faced with a domestic disturbance and in order to restore peace to the situation, he was forced to ask either Witcher, the admitted nonresident homeowner, or White, her relative and resident guest, to leave the premises. Based on this unique situation, it could not have been unreasonable for Officer Muldrow to request White, the family member with the apparently inferior property interest in remaining on the premises, to vacate the explosive situation. Afterwards, when all of the facts were clear, it may have been that Officer Muldrow was incorrect in that conclusion, but a police officer cannot be expected to make that determination when lamps are flying and family members are shouting at each other. Nor was it unreasonable to use the threat of arrest to accomplish this goal. See Schlessinger v. Salimes, 100 F.3d 519, 523 (7th Cir.1996) (holding that it was reasonable, and therefore not a Fourth Amendment violation, for an officer to threaten arrest in order to stop a restaurant patron‘s disorderly conduct). In fact, based on White‘s own contention that “a citizen who is forced out of his home has his liberty restrained,” Officer Muldrow could have been violating Witcher‘s Fourth Amendment rights if he had asked her to leave her own house or face the possibility of arrest. In conclusion, we find that Officer Muldrow‘s actions were not unreasonable, even if they did constitute a seizure, under the totality of the circumstances in this unique situation. Chief Lymore‘s failure to intervene in the situation was similarly not unreasonable.
In any event, even if we were to determine that an unreasonable seizure may have occurred, which we do not, it was not clearly established that Officer Muldrow‘s action on that day constituted a constitutional violation. Given this uncertainty we could not expect an officer with
B. Summary Judgment Motion
We now turn to the district court‘s grant of summary judgment for the City of Markham and Claudette Witcher. The district court granted summary judgment to the defendants, holding that the removal of White from his home was reasonable and therefore not a violation of the Fourth Amendment. In arriving at this conclusion, the court considered both the state of disrepair of the home as well as the intensity of the dispute between White and his aunt. Additionally the court held that, to the extent that White alleged that the City of Markham had a policy in place whereby the police would remove a tenant based on the request of a landlord, that policy did not influence Officer Muldrow‘s actions. White argues on appeal that the district court erred in basing its decision on its determination that Officer Muldrow‘s motivation in forcing White from Witcher‘s home was the allegedly uninhabitable condition of the premises, because the state of the house was a sharply disputed issue. Also White argues that the district court erred in holding that Officer Muldrow‘s motivation behind his eviction—that Witcher was the owner of the house and that she wanted the plaintiffs out—was a lawful motivation, thus rendering the seizure reasonable.3
We review a grant of summary judgment de novo, viewing all of the facts, and drawing all reasonable inferences therefrom, in favor of the nonmoving party. See Central States, Southeast and Southwest Areas Pension Fund v. White, 258 F.3d 636, 639 (7th Cir.2001). Summary judgment is proper if the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Cengr v. Fusibond Piping Sys., Inc., 135 F.3d 445, 450 (7th Cir.1998) (quoting
It is well-settled that the City of Markham cannot be liable for the actions of its agents through a theory of respondeat superior. See Monell v. Dep‘t of Social Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Rather, “it is
White has not presented sufficient facts to meet either standard. First, while White alleged the existence of a policy or custom of evicting tenants at the landlord‘s request at the district court level, he does not make that argument on appeal and therefore it is waived. See Gable at 538. Second, to the extent there was any policy in place, White has not established a constitutional deprivation that resulted from that policy because he was not, in fact, deprived of his rights under the Fourth Amendment, as his alleged seizure was reasonable.
The reasonableness of Officer Muldrow‘s actions in asking White to leave the home comes into even clearer focus when the state of the home at the time of the incident is considered. Based on just those facts that White admits without dispute, the house was clearly under significant construction at the time of his altercation with Witcher. Interior walls had holes in them, a wall connecting the interior of the house to the exterior was covered only by plastic, leftover construction materials were on the floor in the interior of the house and a ceiling had been removed in one room. Furthermore, construction had spread into areas of the house where White and his son were residing. In the face of this construction, Officer Muldrow tried to get a building inspector to come to the premises due to the possible uninhabitability of the house. Therefore, for both health and safety reasons, the most reasonable course of action was to remove White and his son from the house. Because White cannot establish either a deprivation of a constitutional right, or a policy that led to an alleged deprivation, the district court correctly granted summary judgment to the City of Markham and Chief Lymore.
Conclusion
The district court properly found that Officer Muldrow and Chief Lymore were entitled to qualified immunity because, even assuming White had been seized, at the time that White was directed to leave the premises the alleged acts were not clearly established to constitute a constitutional violation. Additionally we find that the district court properly granted summary judgment to the remaining defendants because the actions of the officers were reasonable under the totality of the circumstances. Therefore we AFFIRM the decisions of the district court granting the defendants’ motion to dismiss and motion for summary judgment.