Perry, Rixson M. v. Sheahan, Michael

In the

United States Court of Appeals

For the Seventh Circuit

No. 99-1079

RIXSON M. PERRY,

Plaintiff-Appellant,

v.

MICHAEL F. SHEAHAN, Sheriff of Cook County,

EUGENE SACCO, Assistant Chief, Cook County

Sheriff’s Office, ROBERT SHERMAN, Sergeant,

Cook County Sheriff’s Office, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 98 C 2313--James F. Holderman, Judge.

Argued September 27, 1999--Decided August 2, 2000

No. 99-2741

RIXSON M. PERRY,

Plaintiff-Appellant,

v.

MICHAEL F. SHEAHAN, Sheriff of Cook County,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 99 C 1164--James F. Holderman, Judge.

Argued April 14, 2000--Decided August 2, 2000

Before POSNER, RIPPLE, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge. Rixson M. Perry sued

Michael F. Sheahan, the Sheriff of Cook County,

and some of Sheahan’s employees under 42 U.S.C.

sec. 1983, alleging that they violated his

constitutional rights in seizing firearms and

other items from his apartment. The defendants

filed a motion to dismiss arguing that Perry

lacked standing to seek declaratory and

injunctive relief, and that qualified immunity

shielded them from any damages. The district

court granted their motion, and Perry appeals.

On a motion to dismiss we accept all well-

pleaded allegations in the complaint as true,

construing ambiguities in favor of the plaintiff.

Curtis v. Bembenek, 48 F.3d 281, 283 (7th Cir.

1995). According to the complaint, the seizure

occurred during an aborted eviction. On February

23, 1998, two Cook County Sheriff deputies

forcibly entered Rixson Perry’s apartment for the

purpose of executing an eviction order. Perry had

never received notice of the action for

possession, and contacted his attorney who sought

an emergency stay of the eviction. While Perry

awaited the stay, Sergeant Sherman and Deputy

Sheriff Mak arrived from the Cook County

Sheriff’s Office. The stay was granted a couple

of hours later. At that point, the first deputy

sheriffs had been in the apartment for three

hours, and Sherman and Mak had been there for

ninety minutes. Perry and Sherman subsequently

spoke with Assistant Chief Sacco by phone, and

Sacco ordered that the eviction be halted. Sacco

further stated, however, that the Sheriff’s

office had a policy of seizing any firearms found

in the course of evictions and he directed

Sherman and Mak to seize Perry’s firearms

pursuant to that procedure. Over Perry’s

objections, defendants Sherman and Mak then

removed: "several firearms, most of which were in

a disassembled non-functioning state, awaiting

repair or restoration, a sizeable quantity of

firearms parts, ammunition and accessories,

several knives, most of which were small, folding

pocket knives and some police equipment,

including handcuffs and a baton, which were on a

wall plaque commemorating Perry’s early police

service." Complaint at 23.

Approximately two months later, Perry had still

not recovered his possessions from the Sheriff’s

office, although no one contests that they were

lawfully owned by him. On April 15, 1998, he

filed a complaint under 42 U.S.C. sec. 1983

against Sheahan in his official capacity and

against Sacco, Sherman and Mak in their

individual capacities (Perry I). He sought: (1)

a declaration that the policy of seizing firearms

during an eviction without any predeprivation

process was a violation of due process; (2) an

injunction prohibiting implementation of that

seizure policy; (3) an order requiring Sheahan to

return the property to Perry; and (4) damages

against Sacco, Sherman, and Mak for their role in

the seizure. After Perry filed a motion for

summary judgment, the defendants agreed to return

the confiscated property, and the court entered

an order on June 29, 1998 requiring the return of

the property by July 10, 1998. Perry recovered

property pursuant to that order, but contends

that the defendants still possess some seized

property. The district court subsequently granted

the defendants’ motion to dismiss the remaining

claims, holding that Perry lacked standing to

seek declaratory and injunctive relief, and that

qualified immunity prevented the imposition of

damages against Sherman, Sacco, and Mak. Perry

appealed the court’s ruling dismissing those

claims.

While the appeal was pending in this court,

Perry instituted yet another case in the district

court against the defendants (Perry II), raising

identical issues. Perry II differed from Perry I

only in that it contained a claim for damages

against Sheahan in his individual capacity, and

it contained the additional factual allegations

that Perry was a tenant in Cook County and

therefore subject to eviction again. The district

court dismissed this case as well, holding that

the claims for damages were barred by the

doctrine of res judicata, and that the complaint

still failed to establish an injury-in-fact

sufficient to confer standing for declaratory and

injunctive relief. Because our resolution of

Perry I disposes of Perry II, we will first

address the Perry I appeal.

I.

A.

As Perry is aware from a prior case in this

court, we review de novo an order dismissing a

case for lack of standing. Perry v. Village of

Arlington Heights, 186 F.3d 826, 827 (7th Cir.

1999). The standing requirement inheres in

Article III of the Constitution, which requires

that a party seeking to invoke the jurisdiction

of the federal courts must present an "actual

case or controversy." City of Los Angeles v.

Lyons, 461 U.S. 95, 101 (1983). The purpose of

that requirement is to ensure that the plaintiffs

have "’a personal stake in the outcome’ in order

to ’assure that concrete adverseness which

sharpens the presentation of issues’ necessary

for the proper resolution of constitutional

questions." Id. (citations omitted). To ensure

that personal stake, a plaintiff seeking to

invoke federal court jurisdiction must

demonstrate: (1) an injury that is concrete,

particularized, and actual or imminent rather

than conjectural or hypothetical; (2) a causal

connection between the injury and the challenged

conduct, such that the injury may be fairly

traceable to that conduct; and (3) a likelihood

that the injury will be redressed by a favorable

decision. Lujan v. Defenders of Wildlife, 504

U.S. 555, 560-61 (1992); Perry, 186 F.3d at 829;

American Federation of Govt. Employees v. Cohen,

171 F.3d 460, 466 (7th Cir. 1999). Perry cannot

meet that test here.

As the district court recognized, this case is

analogous to that presented in City of Los

Angeles v. Lyons, 461 U.S. 95 (1983). In that

case, Lyons sued the City of Los Angeles and

certain of its police officers, alleging that the

officers, without provocation, subjected him to

a chokehold after stopping him for a traffic

violation. He sought damages and an injunction

barring the use of chokeholds except where a

suspect threatens the use of deadly force.

Although recognizing that Lyons had standing to

seek damages, the Supreme Court held that he

lacked standing for injunctive relief. The Court

held that "’[p]ast exposure to illegal conduct

does not in itself show a present case or

controversy regarding injunctive relief . . . if

unaccompanied by any continuing, present adverse

effects.’" Id. at 102, quoting O’Shea v.

Littleton, 414 U.S. 488, 495-96 (1974). Because

Lyons could not show a realistic threat that he

would be subjected to a chokehold in the future,

he possessed standing only to seek damages for

the past conduct. In other words, Lyons lacked a

personal stake in the future application of the

chokehold, because he could not demonstrate a

realistic threat that he would be again subjected

to a chokehold.

Perry’s situation parallels that in Lyons

because Perry has alleged only past injury, but

cannot demonstrate a realistic threat that he

would be the subject of another forcible eviction

in Cook County that would result in the seizure

of his property. In fact, Perry makes no argument

in the appeal of Perry I that he faces that

future threat. He argues instead that he has

standing to seek prospective relief because

defendant Sheahan still possesses some of his

property that was seized during the eviction.

Although poorly articulated, his argument appears

be that his past exposure to illegal conduct

establishes a present case or controversy because

it is accompanied by continuing, present adverse

effects, thus invoking the exception recognized

in O’Shea and Lyons.

Even if we were to view the retention of some

of his property as a continuing, present adverse

effect, however, Perry is no closer to

establishing standing because an injunction

prohibiting future seizures in the course of

evictions or a declaration that the policy itself

is unconstitutional would do nothing to redress

that ongoing injury. The equitable relief sought

by Perry does not address the property currently

held, but merely seeks a declaration that the

policy is unconstitutional and a prohibition of

future seizures under the eviction policy. In

fact, Perry requested and received relief for the

injury caused by the continued retention of his

property in the form of an order from the

district court requiring the return of his

property. Only damages, not an injunction or a

declaratory judgment relating to the future use

of the policy, will provide further relief if the

property is not returned. See Bryant v. Cheney,

924 F.2d 525, 529 (4th Cir. 1991) (injunctive

powers of the federal courts are broad, but

"Article III simply precludes their empty use to

enjoin the conjectural or declare the fully

repaired broken.") Thus, Perry cannot meet the

third part of the standing analysis articulated

above, which requires a likelihood that the

injury can be redressed by a favorable decision.

Standing does not automatically attach once an

ongoing injury is identified. As the Supreme

Court has recognized, "[r]elief that does not

remedy the injury suffered cannot bootstrap a

plaintiff into federal court; that is the very

essence of the redressability requirement." Steel

Co. v. Citizens for a Better Environment, 523

U.S. 83, 107 (1998). Because an injunction or

declaratory judgment addressing future seizures

will not redress his ongoing injury, he lacks the

personal stake in the outcome that provides

standing.

A similar attempt to bootstrap standing was

rejected in Natural Resources Defense Council v.

Pena, 147 F.3d 1012, 1014 (D.C. Cir. 1998).

There, the district court had granted a permanent

injunction prohibiting the Department of Energy

from using a report prepared by a committee

organized in violation of the Federal Advisory

Committee Act (FACA). The D.C. Circuit reversed

and remanded the case because it "had serious

doubts" whether the use injunction redressed any

of the claimed injuries. Id. The injuries

asserted in that case were the exclusion from

past committee meetings and the denial of access

to Committee records and documents. Id. at 1021.

The injunction, however, would not give the

appellees access to documents and future meetings

and in fact the Committee had been dissolved and

would no longer generate reports. Id.

Accordingly, the court held that the

redressability element was not met, noting:

"[t]hat the appellees may have sustained a

continuing injury by virtue of the Department’s

ongoing denial of FACA access to Committee

documents and records cannot support their

standing to sue for an injunction that does not

itself address the access issue." Id. at 1022.

Perry similarly claims an ongoing injury

unrelated to the relief sought. That is

insufficient to establish standing for injunctive

and declaratory relief under Article III. See

also City of Houston, Tex. v. Department of

Housing & Urban Development, 24 F.3d 1421, 1429

(D.C. Cir. 1994) (plaintiff cannot obtain

declaratory relief in challenge to ongoing agency

policy if plaintiff’s specific claim is otherwise

fully resolved and plaintiff lacks standing to

attack future applications of the policy). In

fact, Perry’s case illustrates the purpose served

by the standing requirements. He would be a

particularly poor litigant on this issue because

he has made no showing that he is threatened with

a future eviction, and his eviction was unusual

in that the seizure occurred after the eviction

was aborted. Therefore, the likely justifications

for the policy--the safety concerns with

literally placing firearms in the street--were

not even applicable to his eviction. The district

court did not err in holding that Perry lacked

standing to pursue injunctive and declaratory

relief in Perry I.

B.

We are left, then, with Perry’s claims for

damages against Sacco, Sherman, and Mak in their

individual capacities. The district court

dismissed those claims as well, concluding that

plaintiff "failed to show that defendants’

seizure of his firearms during the eviction

violated a clearly established constitutional

right." Dist. Ct. Op. at 7.

Our analysis begins with the well-established

proposition that government officials performing

discretionary functions are entitled to qualified

immunity from liability for civil damages unless

their conduct violates clearly established

statutory or constitutional rights of which a

reasonable person would have known. Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982); Knox v.

McGinnis, 998 F.2d 1405, 1409 (7th Cir. 1993).

Perry thus has the burden of demonstrating that

the defendants violated a constitutional right

that was clearly established at the time of the

incident in February 1998. Conner v. Reinhard,

847 F.2d 384, 388 (7th Cir. 1988). "This is not to

say that an official action is protected by

qualified immunity unless the very action in

question has previously been held unlawful, but

it is to say that the unlawfulness must be

apparent." Anderson v. Creighton, 483 U.S. 635,

640 (1987) (citations omitted). Thus, Perry need

not identify a case involving the exact fact

pattern at bar, but must be able to identify case

law in a closely analogous area. Conner, 847 F.2d

at 388.

The district court held that there was no

established constitutional right against the

seizure of property during an eviction. That

analysis, however, assumes a factual scenario not

present here. Although the defendants entered the

home for the purpose of effecting an eviction,

the seizure of the firearms occurred only after

the eviction was stayed pursuant to an order of

the court. Therefore, the defendants could not

reasonably believe that they were seizing the

firearms pursuant to an order of eviction. The

order of eviction justified their initial

entrance into the apartment, but provides no

cover for actions undertaken after they were

informed of the court-ordered stay. The question,

then, is whether they could reasonably have

believed that the seizure was nevertheless

constitutional.

Perry does a poor job of articulating the

constitutional theory under which he is

challenging the seizure, but appears to rely on

the Fifth and Fourteenth Amendments for his

claim. We have repeatedly held, however, that "a

complaint need not identify a legal theory, and

specifying an incorrect theory is not fatal."

Bartholet v. Reishauer A.G. (Zurich), 953 F.2d

1073, 1078 (7th Cir. 1992). Moreover, Perry acted

pro se in the district court, and thus we must

construe his pleadings liberally. Coulter v.

Gramley, 93 F.3d 394, 397 (7th Cir. 1996). His

complaint unambiguously sets forth a challenge to

the seizure of his property by government

officials. That language raises due process and

Fourth Amendment concerns, which the district

court undoubtedly would have addressed at more

length if it had not been under the mistaken

impression that the seizure occurred during the

eviction. On appeal, Perry properly argues that

the district court erred in presuming that the

seizure occurred during the eviction. Because the

conduct alleged in the complaint would violate

the clearly-established right against

unreasonable seizures, we reverse the district

court’s dismissal of the damages claims on the

grounds of qualified immunity.

It is beyond question that the Fourth Amendment

applies to the seizure of the firearms in this

case. In Soldal v. Cook County, Illinois, 506

U.S. 56, 61 (1992), the Supreme Court noted that

a seizure of property occurs "when there is some

meaningful interference with an individual’s

possessor interests in that property." (citations

omitted). That standard is certainly met by the

physical removal of the property and the

retention of that property by the defendants.

Soldal further held that "the right against

unreasonable seizures would be no less

transgressed if the seizure of the house was

undertaken to collect evidence, verify compliance

with a housing regulation, effect an eviction by

the police, or on a whim, for no reason at all."

Id. at 69. Thus, regardless of whether the

seizure occurred during an eviction or, as here,

after an eviction was aborted, clearly

established law required that the seizure must

comport with the Fourth Amendment. The critical

issue for Fourth Amendment purposes is whether

the seizure was reasonable. Id. at 61-62. Of

course, if the seizure were undertaken pursuant

to a court order of eviction, a showing of

unreasonableness would be "a laborious task

indeed," although not an impossible one. Id. at

71, citing Specht v. Jensen, 832 F.2d 1516 (10th

Cir. 1987) (officers who conducted search of home

under state court order of possession and writ of

assistance held liable for violation of Fourth

Amendment). Here, the defendants do not have the

benefit of acting pursuant to a court order

because the eviction was stayed at the time of

the seizure. We must determine, then, whether the

defendants could have reasonably believed that

the seizure was constitutional even absent a

court order authorizing the seizure and absent

the justification that the firearms could present

a danger to the public if placed in the street.

The general rule is that searches and seizures

in a home without a warrant are presumptively

unreasonable. Arizona v. Hicks, 480 U.S. 321,

326-27 (1987). There are, of course, a number of

well-recognized exceptions to the warrant

requirement but none appear to fit this case. The

defendants argue simply that no established law

prevented the seizure of personal property

whether during an eviction or even after they

were informed that the eviction was stayed. That

position is stunning, and ignores virtually all

Fourth Amendment law. At its extreme, it would

allow officers, once lawfully in a home, to seize

any property with impunity./1 At a minimum, it

would give officers carte blanche to conduct

searches and seizures within a home even after an

eviction is called off. That directly contradicts

Soldal’s recognition that Fourth Amendment

limitations apply even during an eviction, let

alone after an eviction is stayed.

We add that no exception to the warrant

requirement is apparent from the facts. The most

obvious potential argument is the plain view

exception. That exception, however, is met only

if: (1) the deputy did not violate the Fourth

Amendment in arriving at the place from which the

items were plainly viewed; (2) the items were in

plain view and their incriminating character was

"immediately apparent;" and (3) the deputies had

a lawful right of access to the object itself.

Horton v. California, 496 U.S. 128, 136-37

(1990). Because the deputies lawfully entered and

searched the premises pursuant to a then-valid

eviction order, their discovery of the weapons in

the first place was lawful. The analysis fails,

however, on the second prong because no facts

support a finding that the officers possessed

probable cause to believe the items seized from

the house were linked to criminal activity. See

United States v. Bruce, 109 F.3d 323, 328 (7th

Cir. 1997). Because all of the weapons seized can

be lawfully possessed, the deputies could not

reasonably presume that they were of an

incriminating character. Thus, in Bruce we

recognized that shotgun shells are not inherently

incriminating because they can be lawfully

possessed, but that they may assume an

incriminating or suspicious nature in connection

with the crime being investigated. Id. Here,

there was no crime being investigated, and thus

no probable cause to believe that the weapons

were linked to criminal activity. Accordingly,

the plain view exception is inapplicable, and the

facts do not reveal any other possible

justification that would render the seizure

reasonable./2

We note that even Boone v. State, 383 A.2d 412,

420 (Md. 1978), which the dissent proffers as

supporting its position, held unconstitutional a

seizure which occurred during an eviction because

the items seized were not incriminating on their

face. In Boone, the court stated that it could

equate the policy of not putting a tenant’s

dangerous or valuable items on the street, with

the inventory rationale of Fourth Amendment

jurisprudence and the concern for public safety.

Id. at 419. Neither justification applies where

the eviction is stayed and the property would

otherwise remain with the tenant. No case implies

that such an arbitrary seizure is lawful, and

basic Fourth Amendment law establishes it is not.

In summary, it was clearly established law at

the time of the seizure that even seizures

pursuant to an eviction are not immune to the

strictures of the Fourth Amendment. Here, the

defendants seized the weapons even though they

knew that the eviction had been stayed by order

of the court and thus that the seizure was not

pursuant to any court order. It was also clearly

established that warrantless seizures of personal

effects from a home are presumably unreasonable.

No exception to that rule or other circumstances

apparent in this motion to dismiss would render

objectively reasonable their belief that this

seizure was constitutional. Therefore, there is

no basis for qualified immunity, and the decision

of the district court in Perry I must be reversed

on this issue.

II.

That leaves us with Perry II, which presents an

identical issue to that in Perry I. The only

claim in Perry II that was not raised in Perry I

was the request for money damages against Sheahan

in his individual capacity. In his reply brief

before this court, however, Perry withdrew that

claim, and limited the appeal to the claims for

injunctive and declaratory relief. Therefore, we

are left with a case that is identical to Perry

I, except for the inclusion of some facts that

Perry (mistakenly) believes would establish his

standing to seek injunctive and declaratory

relief. Perry asserts that Perry II is beyond the

reach of res judicata because the injunctive and

declaratory claims were dismissed for lack of

subject matter jurisdiction based on his failure

to demonstrate standing, and thus it was not a

judgment on the merits under R. 41(b). That

truism gets him nowhere. Although only judgments

on the merits preclude parties from litigating

the same cause of action in a subsequent suit,

that does not mean that dismissals for lack of

jurisdiction have no preclusive effect at all. A

dismissal for lack of jurisdiction precludes

relitigation of the issue actually decided,

namely the jurisdictional issue. Magnus

Electronics, Inc. v. La Republica Argentina, 830

F.2d 1396, 1400 (7th Cir. 1987). The difference is

in the type of preclusion, not the fact of

preclusion. "[A] judgment on the merits precludes

relitigation of any ground within the compass of

the suit, while a jurisdictional dismissal

precludes only relitigation of the ground of that

dismissal . . . and thus has collateral estoppel

(issue preclusion) effect rather than the broader

res judicata effect that nowadays goes by the

name of claim preclusion." Okoro v. Bohman, 164

F.3d 1059, 1063 (7th Cir. 1999). Therefore, Perry

cannot escape the preclusive effect of Perry I by

the rote intonation that this is not a judgment

on the merits. The determination that Perry

lacked standing in Perry I precludes relitigation

of the same standing argument in Perry II.

Nor can the addition of new factual allegations

save Perry II by transforming the standing issue

into a different one than that decided in Perry

I. Perry conceded at oral argument that the

factual allegations included in Perry II did not

represent a change in circumstances between Perry

I and Perry II. Instead, they were facts known

when Perry I was brought, but that were never

included in the complaint. In Magnus, we rejected

a similar attempt to circumvent issue preclusion.

We held that where a prior suit is dismissed for

lack of jurisdiction, the inclusion of additional

factual allegations on the jurisdictional issue

will not avoid issue preclusion when those facts

were available at the time the original complaint

was filed. Only facts arising after the complaint

was dismissed--or at least after the final

opportunity to present the facts to the court--

can operate to defeat the bar of issue

preclusion. As the Magnus court recognized,

[u]nder a system such as that established by the

Federal Rules of Civil Procedure, which permits

liberal amendment of pleadings, it does not make

sense to allow a plaintiff to begin the same suit

over and over again in the same court, each time

alleging additional facts that the plaintiff was

aware of from the beginning of the suit, until it

finally satisfies the jurisdictional

requirements.

Id. at 1401. That is precisely what Perry

attempted here. We affirm the dismissal of Perry

II, although on grounds of issue preclusion

rather than for lack of standing.

Finally, we are disturbed at the sequence of

events in this case which resulted in a waste of

judicial resources that should have been apparent

from the inception. Perry II was nothing more

than a reargument of the same contentions

rejected in Perry I, that were barred by issue

preclusion, and that duplicated the arguments

simultaneously being made in this court on appeal

from Perry I. The subsequent appeal of Perry II

as well only worsened the situation. Perry

withdrew all arguments in Perry II except for the

arguments that were identical to the Perry I

appeal. This withdrawal, however, did not come

until his reply brief, thus forcing opposing

counsel to respond and this court to review

arguments which Perry did not intend to pursue.

This abuse of the judicial process is

impermissible. Any similar behavior in the future

shall result in the imposition of sanctions.

For the reasons stated above, the decision of

the district court in Perry I is affirmed in part

and reversed in part, and the case remanded for

further proceedings consistent with this opinion.

The decision in Perry II is affirmed.

/1 We do not hold that the Fourth Amendment seizure

analysis is an all-or-nothing proposition.

Certainly, if the defendants had discovered

incriminating evidence, they could have seized it

even though the eviction order was stayed, and

even though they could not seize any other

property.

/2 The argument that the defendants needed to seize

the firearms because evictions are inherently

volatile situations is patently unsupported by

the facts here. The deputies had been at the

apartment for three hours before they even

removed the firearms from the premises. At that

time, the eviction had been called off. There are

no allegations that Perry had to be restrained or

was otherwise violent during the three hours they

were there. Those facts are insufficient to

support a motion to dismiss on grounds of

qualified immunity premised on the danger of the

situation.

Posner, Circuit Judge, concurring in part and

dissenting in part. My disagreement is limited to

the rejection of the officers’ defense of

qualified immunity. The Cook County Sheriff’s

police have a practice, which seems sensible and

is supported by the only case I have found

dealing with such a practice, Boone v. State, 383

A.2d 412, 419 (Md. App. 1978), of seizing any

weapons found during the course of an eviction at

which police are present, even if there is no

reason to believe that the weapons are contraband

or evidence of crime. The seizure is temporary;

the owner is entitled to their return; and since

eviction can be an emotional experience, see,

e.g., Mellott v. Heemer, 161 F.3d 117, 122-23 (3d

Cir. 1998); Parrott v. Wilson, 707 F.2d 1262,

1265-66 (11th Cir. 1983)--in the second of these

cases the eviction led to gunfire and death--and

placing a cache of weapons along with the rest of

the tenant’s property on the sidewalk can be an

invitation to thieves, the temporary

sequestration of the tenant’s guns by the police

is a justifiable measure of public safety. I do

not understand the majority to disagree with this

proposition, and it follows a fortiori that the

police would be protected by the doctrine of

official immunity from any suit for damages based

on such a seizure. Of course the police who

seized Perry’s weapons could not reasonably have

believed that they had a right to seize any and

all property found on a tenant’s premises in the

course of an eviction. But in an analysis of

their immunity defense the only question would be

whether they could reasonably have believed

themselves entitled to seize weapons found there.

Any idea that because the police can’t seize

everything they find, they can’t seize anything

they find, would be not only a logical error but

also a violation of the principle that a claim of

immunity is defeated not by invoking generalities

but by showing that the specific conduct

complained of had been determined to be unlawful

before the defendants acted, so that they were on

clear notice of the unlawfulness of the conduct.

E.g., Wilson v. Layne, 526 U.S. 603, 614-15

(1999); Anderson v. Creighton, 483 U.S. 635, 639-

41 (1987); Greenberg v. Kmetko, 922 F.2d 382, 384

(7th Cir. 1991).

The wrinkle here is that the police learned

during the course of the eviction that it had

been stayed yet took the weapons anyway. It is

arguable, however, that the need for a "cooling

off" period remained and that it would have been

imprudent for the police, having begun to collect

the weapons preparatory to removing them, to

return them to Mr. Perry and then, as it were,

turn their backs to him and leave. It is not a

conclusive argument, but it is not so off the

wall as to excuse the plaintiff, if he wants to

argue that no reasonable police officer could

rely on such an argument, to present some case

authority rejecting it. This he has not done and

could not do. It is true that when the

constitutional violation is patent, the defense

of immunity can be rejected without case

authority. Burgess v. Lowery, 201 F.3d 942, 944-

45 (7th Cir. 2000); Anderson v. Romero, 72 F.3d

518, 526-27 (7th Cir. 1995); Eberhardt v.

O’Malley, 17 F.3d 1023, 1028 (7th Cir. 1994);

McBride v. Village of Michiana, 100 F.3d 457, 460

(6th Cir. 1996); Buonocore v. Harris, 65 F.3d

347, 356-57 (4th Cir. 1995). The violation might

be so patent that no one had ever committed it or

sought to fight a suit complaining of it. But

that is not this case. The majority opinion

misses the point when it says that "the argument

that the defendants needed to seize the firearms

because evictions are inherently volatile

situations is patently unsupported by the facts

here." If, as this passage could be read to

concede, evictions are indeed inherently

volatile, then prudence would justify the seizure

of weapons even if the tenant did not appear to

be violent. At least the argument that it would

is not so ridiculous that it can be rejected on

the basis of "basic Fourth Amendment law." What

the majority calls "basic Fourth Amendment law"

is merely the generalities of Fourth Amendment

doctrine; and general principles do not decide

immunity issues, as the Supreme Court made clear

in the Wilson and Anderson decisions that I

cited.

We ought to use some imagination, and put

ourselves in the place of these police officers,

not learned in the law, when the eviction was

called off. Could it really be said that they

should have known that the Constitution

prohibited them from temporarily sequestering

Perry’s alarming pile of weaponry? I think not.

The defendants are entitled to immunity from the

plaintiff’s claim of damages, and I would

therefore affirm the dismissal of both suits.