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
CRABB, Chief District Judge,
concurring.
I concur in the result reached by the majority, but I decline to join the opinion. I do not believe that the Fourth Amendment provides the analytic framework for the Ker-natses’ claim and I am not prepared to hold that the family was “seized” within the meaning of the Fourth Amendment even if reasonable persons in the same circumstances would have believed that Officer O’Sullivan’s threats gave them no option but to leave their rented home. In my view, the proper analysis of a claim like the Kernatses’ is under the Fifth and Fourteenth Amendments, to determine whether they had a property interest in remaining on the premises they were occupying. If they did, then it would be reasonable to consider whether the officer’s threats were such as to compel reasonable persons in the Kernatses’ situation to leave. If they did not have a cognizable interest in staying, then they have no constitutional claim against Officer O’Sullivan, as reprehensible and unprofessional as his threats may have been.
The majority seems to suggest that a “seizure” can occur when a person is deprived of the modicum of liberty associated with being able to stay in one particular location while remaining free to go or stay anywhere else. Judge Rovner would make this explicit. I agree that the essence of the deprivation involved in a forced detention is that the detained person loses the liberty to go about his business in places where he has the right to be. The majority argues from this that any unreasonable deprivation of liberty compelled by official force amounts to a prohibited seizure, and that to the extent the Ker-nats family was officially deprived of the ability to go about the business of their daily lives, the family was seized. However, the court cites no case in which a court has read the Fourth Amendment this expansively. The Kernatses’ able lawyer could not find any such case and neither can I. I know of ho case, for example, in which a court has held that persons loitering on a street corner were seized when told to leave or that street vendors operating without a license were seized when forced away from their chosen place of business.
No other court has ever reached the conclusion Judge Rovner would reach here. Instead, courts have held that a seizure occurs when a person is detained, that is, when “in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554 , 100 S.Ct. 1870, 1877 , 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.) “From the time of the founding to the present, the word ‘seizure’ has meant a ‘taking possession’.... For most purposes at common law, the word connoted not merely grasping, or applying physical force to, the animate or inanimate object in question, but actually bringing it within physical control.” California v. Hodari D., 499 U.S. 621, 624 , 111 S.Ct. 1547, *1185 1549 , 113 L.Ed.2d 690 (1991) (citations omitted).
The majority acknowledges that it can find no case holding that conduct such as O’Sullivan’s violated the Kernatses’ clearly established rights under the Fourth Amendment, but argues that the Supreme Court has changed the framework for analysis of the plaintiffs’ “novel claim.” To the extent that the majority believes the Supreme Court has expanded the concept of a seizure to encompass official compulsion that does not amount to a detention, I disagree respectfully. Not one of the cases decided since Mendenhall changes the basic understanding that a seizure requires detention or submission to a search. Not one involves a person instructed to leave a particular location.
It is true that in Florida v. Bostick, 501 U.S. 429 , 111 S.Ct. 2382 , 115 L.Ed.2d 389 (1991), the Court found the “free to leave” analysis inapplicable to the questioning of passengers aboard a bus because leaving the bus was not a reasonable alternative for the passengers. The Court described the test for a seizure as whether the “police conduct would ‘have communicated to a reasonable person that he was not at liberty to ignore the police presence and go -about his business.’ ” Id. at 437 , 111 S.Ct. at 2387 (quoting Chesternut v. Michigan, 486 U.S. 567, 569 , 108 S.Ct. 1975, 1977 , 100 L.Ed.2d 565 (1988)). The Court recast the “free to leave” test, but only to fit the situation in which a person’s movements are confined by a factor independent of police conduct. The Court remained concerned with the extent to which official actions amount to a forced detention of the person. As the Court stated, the test announced in Bostick “follows logically from prior cases and breaks no new ground.” Id. at 437 , 111 S.Ct. at 2387. Certainly neither Bostick nor any other case suggests that the Fourth Amendment is implicated in every kind of forced compliance with an official order.
Judge Rovner emphasizes the holding in Hayes v. Florida, 470 U.S. 811 , 105 S.Ct. 1643 , 84 L.Ed.2d 705 (1985), implying that it supports the conclusion that forcing a person out of his home is a Fourth Amendment violation. In fact, the focus in Hayes was not on whether Hayes had been forced out of his house by official threats of arrest, but whether the police had probable cause to take him to the police station and detain him there for investigative purposes. The outcome would have been no different if the police had come upon Hayes at a baseball field and given him the same choice of coming with them voluntarily or submitting to an arrest. The determinative factor was that he was made to go to the police station to be detained for investigation, not that he- was forced to leave- a particular place.
The majority is correct when it says that the courts have found compulsion in the absence of an actual “hands-on” arrest. But that is only half the issue. Even if reasonable persons in the Kernatses’ circumstances would have been felt compelled to comply with O’Sullivan’s directives to leave their home, that compliance must amount to a seizure within the meaning of the Fourth Amendment. In my view, it did not. The act required of the Kernats family was leaving the premises. They were not compelled to submit to a detention or to a search. In these circumstances, Fourth Amendment law is not implicated.
The majority’s approach to this case would expand Fourth Amendment law into areas it was never intended to reach. The majority does not suggest that it would limit its characterization of a seizure to only those orders of exclusion involving the home. Indeed, I see no way in which such a limitation could be justified. It is not frivolous, therefore, to suggest that equating a seizure with any kind of officially coerced compliance raises the specter of evaluating the reasonableness under the Fourth Amendment of police orders to clear a crime scene, form a single line in a highway construction area, stay out of a condemned building or move away from a convenience store.
My colleagues are troubled, as am I, by the alleged unauthorized show of force by Officer O’Sullivan and by the undeniably poignant aspects of the forced eviction of the Kernats family. If Officer O’Sullivan did what the Kernatses allege, his arrogation of authority and misuse of his position are the kind of official conduct the Civil Rights Acts *1186 were intended to address. On the other hand, the actual wrong done to the Kernatses is negligible. As difficult as their circumstances were, they suffered nothing that they would not have suffered had it been a properly authorized deputy sheriff who came to their door and directed them to leave. The Kernatses do not argue that they had a property right to remain in the rented house; the state court had determined that they had no such right and the Kernatses do not suggest that they enjoyed a property right to stay until the proper official came to evict them.
The Kernatses contended that O’Sullivan deprived them of a liberty interest arising out of their right to live together as a family because the family was unable to find alternative housing to accommodate the entire family that night. I agree with Judge Flaum that it was proper for the district court to dismiss this claim but my agreement rests on the lack of merit of the claim (the temporary breakup of the family was not a foreseeable result of Officer O’Sullivan’s actions). I would not dismiss it on the authority of Albright v. Oliver, — U.S.—, 114 S.Ct. 807 , 127 L.Ed.2d 114 (1994), because of my conviction that the Fourth Amendment does not provide “an explicit textual source of constitutional protection” applicable to the conduct alleged. Id. at-, 114 S.Ct. at 813 .
It does not follow, either from the Kernats-es’ unfortunate circumstances or from the lack of a means of obtaining relief under § 1983; that the judicial response should be to reshape the Fourth Amendment. As disturbed as I am by the Kernatses’ situation, I am more disturbed by the prospect of suggesting to public employees in this indirect manner that they will have to be prepared to justify under a Fourth Amendment standard any order that results in compelled compliance.