The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-2034
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.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 3162—James B. Zagel, Judge.
____________
ARGUED FEBRUARY 13, 2002—DECIDED NOVEMBER 13, 2002
____________
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. Dur-
ing 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 resi-
dence, requested that White vacate the premises or face
2 No. 01-2034
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, alleg-
ing that they violated his Fourth Amendment right to be
secure against unreasonable seizures, in violation of 42
U.S.C. § 1983. White also asserted state law claims of
wrongful eviction and breach of quiet enjoyment. The
district court dismissed the claims against the officers
under a grant of qualified immunity and granted summary
judgment to all defendants, finding that Officer Muldrow’s
actions were reasonable. White appeals the district court’s
judgments and we affirm.
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 re-
model her home prior to April 1. The construction project
impacted several areas of the house including areas fre-
quently used by White and his son. Interior walls were
knocked out, the ceiling in one room was removed, and
No. 01-2034 3
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 long-
er welcome to stay. A verbal altercation between the par-
ties ensued and Witcher started throwing their belong-
ings 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 broken lamps and other personal belongings
scattered on the living room floor along with White’s
shattered fish tank. Witcher and White continued to ar-
gue and both asked Officer Muldrow to remove the other
from the premises.
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 McClin-
ton 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.
4 No. 01-2034
In May 1999 White and McClinton (hereinafter “plain-
tiffs”) filed a five-count complaint seeking damages pur-
suant to 42 U.S.C. § 1983, alleging a deprivation of their
rights secured by the Fourth Amendment. They also sought
damages for violations of state law including wrongful
eviction and breach of quiet enjoyment. The complaint
named the City of Markham, Chief Eric Lymore, and po-
lice officer Ken Muldrow, as well as their aunt, Claudette
Witcher, as defendants. In November 1999, the district
court dismissed all state law claims filed against the City,
Lymore and Muldrow, and the federal claims against
Lymore and Muldrow, finding they were entitled to qual-
ified immunity. The court then granted summary judg-
ment in favor of all defendants in October 2000. White ap-
peals both decisions.
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 fam-
ily 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 judg-
ment because of the existence of contested issues of mate-
rial 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.
No. 01-2034 5
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
plaintiff’s 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 (1957); Crenshaw, 180 F.3d at 868.
The threshold inquiry in a qualified immunity analysis
is whether the plaintiff’s allegations, if true, establish a
constitutional violation. See Saucier v. Katz, 533 U.S. 194,
201 (2001). If a violation can be made out based on the
plaintiff’s allegations, a court should then inquire as to
whether the right was clearly established. See id. As the
Court explained in Saucier, qualified immunity operates
“to ensure that before they are subjected to suit, officers
are on notice their conduct is unlawful.” Saucier, 533 U.S.
at 206. Thus, for a constitutional right to be clearly estab-
lished, “its contours ‘must be sufficiently clear that a
reasonable official would understand that what he is do-
ing violates that right. 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 in the light of pre-existing law the
unlawfulness must be apparent.’ ” See Hope v. Pelzer, 122
S.Ct. 2508, 2515 (2002) (internal quotations and citations
omitted). Accordingly, in this case we must first deter-
mine if, assuming the facts alleged in the complaint
are true, Officer Muldrow violated the plaintiffs’ Fourth
6 No. 01-2034
Amendment rights by threatening him with arrest if he
did not leave the premises, and if Chief Lymore violated
the plaintiffs’ rights by failing to intervene in the situa-
tion. If so, we must then determine whether the state of
the law at the time of the alleged events at issue gave
them a fair warning that their treatment of the plaintiffs
was unconstitutional. See id. The plaintiffs bear the bur-
den of establishing the existence of a clearly established
constitutional right. See Rakovich v. Wade, 850 F.2d 1180,
1209 (7th Cir. 1988).
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.” U.S. Const. Amend. IV. Its “central
requirement” is one of reasonableness. See Texas v. Brown,
460 U.S. 730, 739 (1983). Therefore, to state a constitu-
tional violation, the defendants must allege (1) Officer
Muldrow’s conduct constituted a “seizure,” and (2) the
seizure, if one occurred, was “unreasonable.” Kernats v.
O’Sullivan, 35 F.3d 1171, 1177 (7th Cir. 1994); Donovan v.
City of Milwaukee, 17 F.3d 944, 948 (7th Cir. 1994).
In this case the plaintiffs claim that they were the sub-
ject 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
(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 cir-
No. 01-2034 7
cumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave.” (Empha-
sis supplied.) White is not alleging that he was not “free
to leave,” but rather that he was not free to stay. In Florida
v. Bostick, 501 U.S. 429, 436-37 (1991), the Court found
the “free to leave” analysis inapplicable to a factual sce-
nario involving the questioning of passengers aboard a
bus because leaving the bus before it reached the pas-
sengers’ destination was not a reasonable alternative. In
that case the Court described a more appropriate test for
a seizure would be “whether a reasonable person would
feel free to decline the officer’s requests or otherwise
terminate the encounter.” Id. at 436. In analyzing a situ-
ation where a suspect was restricted in some manner, but
did not attempt to leave, the Supreme Court has iden-
tified a number of factors that might suggest that a seizure
has occurred, including: the threatening presence of sev-
eral officers, the display of a weapon by an officer, some
physical touching of the person of the citizen, or the use
of language or tone of voice indicating that compliance
with the officer’s request might be compelled. See Menden-
hall, 446 U.S. at 554.
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 land-
lord. In that case, Spiegel, who returned to his apartment
after he had been evicted through a court order, was or-
dered by the police not to go to or into his former resi-
dence 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,
8 No. 01-2034
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 offi-
cer (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 ar-
rest, and subsequently filed a § 1983 suit alleging that
O’Sullivan unreasonably seized them when he ordered
them to leave. See id. In that case, the district court found
no seizure and dismissed the suit, but on appeal the
court divided three ways and could not agree on wheth-
er the tenants were seized. See id. at 1183-86.
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 remain-
ing 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 plain-
tiffs White was not staying in the house under a written
1
lease. Additionally, unlike Kernats, who had several hours
1
Despite White’s quasi-tenant status, his possession of the
property and intent to stay there indicates that Witcher’s house
(continued...)
No. 01-2034 9
to get out or face arrest, White alleges that he faced the
immediate threat of arrest if he did not comply with the
police order. Similar to Spiegel, White faced additional
impediments to his possession of the premises outside
of the threat of arrest, namely his aunt’s vigorously ex-
pressed desire not to have him stay as her guest any long-
er. It was White himself, after all, who called the police
in an apparent effort to stop his aunt’s actions.
Alternatively, White argues that he was seized pursu-
ant to our holding in United States v. Jerez, 108 F.3d 684,
691-92 (7th Cir. 1997), where we applied the “free to termi-
nate 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
1
(...continued)
was his “home” under Illinois law for Fourth Amendment
purposes. See People v. White, 512 N.E.2d 677, 681 (Ill. 1987) (“ ‘If
a suspect has been living in a particular dwelling for any sig-
nificant period, say a few days, it can certainly be considered
his ‘home’ for Fourth Amendment purposes, even if the prem-
ises are owned by a third party and others are living there,
and even if the suspect concurrently maintains a residence
elsewhere as well.’ ” (citing Steagald v. United States, 451 U.S.
204, 230-31 (1981) (Rehnquist, J., dissenting))).
10 No. 01-2034
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 inves-
tigative purposes, it is indisputable that a seizure would
have occurred. See Hayes v. Florida, 470 U.S. 811, 816 (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 inves-
tigative purposes.”).
However, based on the facts alleged in the complaint,
it is clear that White was not “free to terminate the en-
counter.” Additionally, based on Officer Muldrow’s slight
touching of White combined with the threat of immedi-
ate arrest if White did not comply with his order, it is
apparent that White felt compelled to comply with Offi-
cer Muldrow’s commands or face the consequences. See
Mendenhall, 446 U.S. at 554. However, under this factual
scenario, when the plaintiffs were free to leave and there-
by terminate the encounter at any time it is unclear wheth-
er a seizure occurred. We do not need to answer that ques-
tion 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 stan-
dards by balancing an individual’s privacy interests
against legitimate governmental interests.” Wyoming v.
Houghton, 526 U.S. 295, 299-300 (1999) (citing Vernonia
School Dist. 47J v. Acton, 515 U.S. 646, 652-53 (1995)).
Whether or not a seizure is reasonable under this balanc-
ing act is determined by examining the totality of the
No. 01-2034 11
circumstances. See, e.g., Illinois v. McArthur, 531 U.S. 326,
331-34 (2001) (holding that preventing a man from enter-
ing 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 allega-
tions contained in White’s complaint it is clear that he
has not suffered an unreasonable seizure as a matter of
law. Unlike the suspects in Jerez who, having paid for their
hotel room had valid occupancy, or the litigants in Kernats
and Spiegel who at some point had a written lease to
their property, White’s allegations of a right to remain
on Witcher’s property, in the face of her demand that he
leave, are tenuous at best. In his complaint he states that he
was permitted to stay at his aunt’s house until construc-
tion began on the premises and in exchange he would
perform some chores, safeguard the house against vandal-
ism, and pay some utility bills. He does not allege that
a written lease existed, or that he paid rent, but only
that Witcher agreed to let him and his son stay at the
house until the construction started on April 1, 1999.
Obviously, she was unhappy with that arrangement
by March 9, 1999, when construction had already begun,
and expressed that unhappiness by returning to her home
and demanding his departure. The altercation was seri-
ous enough that White’s personal property had been
broken and strewn around the house, causing White him-
self to call Officer Muldrow to the premises to intervene as
a “peace officer.” See Ill. Comp. Stat., ch. 65, § 5/11-1-2(a)
(1998) (“Police officers in municipalities shall be conserva-
tors of the peace.”). See also City of Chicago v. Morales, 527
U.S. 41, 106-07 (1999) (Thomas, J., dissenting) (“Police
officers are not, and have never been, simply enforcers of
the criminal law. They wear other hats—importantly, they
12 No. 01-2034
have long been vested with the responsibility for preserv-
ing the public peace.”) (citing O. Allen, Duties and Liabil-
ities of Sheriffs 59 (1845) (“As the principal conservator of
the peace in his county, and as the calm but irresistible
minister of the law, the duty of the Sheriff is no less impor-
tant than his authority is great.”)).
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 admit-
ted 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 determina-
tion when lamps are flying and family members are shout-
ing 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 Offi-
cer Muldrow’s actions were not unreasonable, even if they
did constitute a seizure, under the totality of the circum-
stances in this unique situation. Chief Lymore’s failure to
intervene in the situation was similarly not unreasonable.
No. 01-2034 13
In any event, even if we were to determine that an unrea-
sonable 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 even a
detailed knowledge of the holdings in Kernats and Spiegel,
2
much less a reasonable person, to have had a fair warn-
ing that White had a right superior to that of his aunt to
remain on the premises. He could not have known that
asking White to leave under threat of arrest would con-
stitute an unreasonable seizure. Nor does White point to
any case law where such a scenario or even a similar
scenario was held to be a seizure. Therefore, because Offi-
cer Muldrow and Chief Lymore did not have a “fair warn-
ing” that Officer Muldrow’s actions were unconstitutional,
and because the eviction was not unreasonable under
these circumstances, the district court correctly granted
Officer Muldrow and Chief Lymore qualified immunity.
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 de-
fendants, 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
2
“[G]overnmental officials performing discretionary functions
are shielded from liability for civil damages insofar as their con-
duct does not violate clearly established statutory or constitu-
tional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (emphasis added);
see also Elder v. Holloway, 510 U.S. 510 (1994).
14 No. 01-2034
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 Offi-
cer Muldrow’s actions. White argues on appeal that the
district court erred in basing its decision on its determina-
tion 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 own-
er of the house and that she wanted the plaintiffs out—
was a lawful motivation, thus rendering the seizure reason-
3
able.
We review a grant of summary judgment de novo,
viewing all of the facts, and drawing all reasonable infer-
ences 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 judg-
ment is proper if the record shows that there is no genu-
ine 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 Fed.R.Civ.P. 56(c)).To state a claim under
3
White does not challenge the finding of summary judgment
in favor of Claudette Witcher on appeal and has therefore
waived those arguments. See, e.g., United States v. Feinberg, 89
F.3d 333, 340 (7th Cir. 1996) (“Any issues or arguments of
which the appellate may wish to avail himself are forfeited
unless proffered in the appellate brief.”).
No. 01-2034 15
§ 1983, the moving party must demonstrate that the de-
fendant deprived him of a right secured by the Constitu-
tion and that in doing so the defendant acted under color
of state law. Stagman v. Ryan, 176 F.3d 986, 999 (7th Cir.
1997).
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 (1978). Rather, “it is when execution of a government’s
policy or custom, whether made by its lawmakers or by
those whose edicts or acts may fairly be said to represent
official policy, inflicts the injury that the government as
an entity is responsible under § 1983.” Id. at 694. There-
fore, to maintain a § 1983 claim against the City of Mark-
ham, White must establish both “the requisite culpability
(a ‘policy or custom’ attributable to municipal policy-
makers), and the requisite causation (the policy or custom
was the ‘moving force’ behind the constitutional depriva-
tion).” Gable v. City of Chicago, 296 F.3d 531, 537 (2002)
(citing Monell at 436 U.S. at 691-94).
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 re-
quest 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 depriva-
tion 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 ask-
ing 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 ad-
16 No. 01-2034
mits without dispute, the house was clearly under signifi-
cant 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 re-
moved 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 ei-
ther a deprivation of a constitutional right, or a policy
that led to an alleged deprivation, the district court cor-
rectly 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 dis-
trict 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.
No. 01-2034 17
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-13-02