recognizing that an order to move can be a seizure and admonishing the district court for its failure to address the plaintiffs’ argument “that they were seized because … they were not free to remain”
How later courts described this case
- recognizing that an order to move can be a seizure and admonishing the district court for its failure to address the plaintiffs’ argument “that they were seized because … they were not free to remain”
- recognizing that an order to move can be seizure and admonishing the district court for its failure to address the plaintiffs’ argument “that they were seized because ... they were not free to remain”
- holding that “claims alleging substantive due process violations often are more appropriately analyzed under the more specific guarantees of the various provisions of the Bill of Rights”
- describing plaintiff’s concession that she failed to find an on-point case for the clearly established law prong of the analysis as a deficiency that was “not fatal by itself because we must determine qualified immunity in light of all relevant precedents—both those cited by the parties and those we discover ourselves”
Written by the judges who cited it.
The opinion
ILANA DIAMOND ROVNER, Circuit Judge,
concurring.
I am pleased to join Judge Flaum’s insightful discussion of existing Fourth Amendment seizure law and its implications on Officer O’Sullivan’s qualified immunity from Ker-nats’ suit. As Judge Flaum explains, at the time of the official conduct here, it was not clearly established that O’Sullivan’s alleged abuse of his position of power and public trust would violate the Fourth Amendment. Having reached that conclusion, Judge Flaum leaves unanswered the ultimate question of whether Kernats successfully alleged an unreasonable seizure under the Fourth Amendment, as it is unnecessary to his conclusion with respect to the state of existing law. I fully concur in Judge Flaum’s qualified immunity analysis but write separately to emphasize that, in my view, a Fourth Amendment claim was stated. Although, as Judge Flaum points out, the “temporal and spatial aspects of O’Sullivan’s alleged threat” were looser than those typically characterizing Fourth Amendment seizures (ante at 1180), that seems to me a function only of the conduct required to avoid the threatened arrest. O’Sullivan was demanding that Ker-nats pack up all of her belongings, as well as her small children, and remove them from the premises within a matter of hours. In that context, Kernats was constrained to make an instantaneous judgment as to whether compliance was required. Indeed, when Kernats intimated to O’Sullivan that only the Cook County Sheriff could conduct an eviction, it is alleged that O’Sullivan reminded her that she was in Tinley Park and that he was the law in that community. I believe that response would have caused a reasonable person in Kernats’ position to submit to O’Sullivan’s show of authority without attempting, on a Sunday afternoon, to contact either the Chief of Police, the State’s Attorney, or a private lawyer. (See ante at 1180.) O’Sullivan also threatened to return that evening to ensure that Kernats and her family had gone, and Kernats alleged that Tinley Park police cruisers were patrolling the neighborhood as she and her family removed their belongings. In my view, the *1184 conduct alleged here crossed the Hayes v. Florida line (see ante at 1180), as O’Sullivan, in effect, forcibly removed Kernats and her family from their home without the legal authority to do so. Thus, were it necessary to our decision today, I would hold that Kernats alleged an unreasonable seizure in violation of the Fourth Amendment.
Contrary to what Judge Crabb has suggested in her concurring opinion, neither the majority opinion nor my own comments here have done anything to “reshape” the Fourth Amendment. (See post at 1186.) In my view, the majority has merely given meaning to the Supreme Court’s focus in a number of Fourth Amendment cases on whether the “police conduct would ‘have communicated to a reasonable person that [s]he was not at liberty to ignore the police presence and go about [her] business.’ ” Florida v. Bostick, 501 U.S. 429, 437 , 111 S.Ct. 2382, 2387 , 115 L.Ed.2d 389 (1991) (quoting Chesternut v. Michigan, 486 U.S. 567, 569 , 108 S.Ct. 1975, 1977 , 100 L.Ed.2d 565 (1988)); see also California v. Hodari D., 499 U.S. 621, 628 , 111 S.Ct. 1547, 1551-52 , 113 L.Ed.2d 690 (1991). The Supreme Court has consistently utilized this test without producing the dire consequences Judge Crabb envisions, and I see nothing in that test that would preclude its application to circumstances such as those alleged here.