Respondents Brief — Soldal v. Cook County

i i ——

No. 91- 6516

IN THE

Supreme Court of the United States

OcTOBER TERM, 1991

EDWARD SOLDAL, ET AL..,

Petitioners,

vs.

COUNTY OF COOK, ET AL.,

Respondents.

On Writ Of Certiorari To The United States

Court Of Appeals For The Seventh Circuit

BRIEF FOR RESPONDENTS

JACK O’MALLEY

State’s Attorney

Cook County, Illinois

e KENNETH L. GILLIS

Counsel of Record

, First Assistant State’s Attorney

309 Richard J. Daley Center

° Chicago, Illinois 60602

(312) 443-5496

RENEE G. GOLDFARB

KENNETH T. McCURRY

RANDOLPH M. JOHNSTON

SUSAN R. SCHIERL

. Assistant State’s Attorneys

Attorneys for Respondents

—$_—

as

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

QUESTIONS PRESENTED FOR REVIEW

1) Does the presence of a police officer at the scene

of a private eviction constitute state action.

2) Are the protections of the Fourth Amendment in-

applicable where there is no search for and no taking of

property which could be used as evidence and no inter-

ference with any expectation of privacy.

3) Does the action of illegally evicting petitioners from

their leased mobile home lot constitute a violation of peti-

tioners’ constitutional right to due process of law.

4) Are petitioners entitled to 42 U.S.C. § 1983 redress

for a landlord/tenant dispute which resulted in petitioners’

illegal eviction and incidental property damage.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ..

TABLE OF AUTHORITIES .................

OPINIONS BELOW .......0.00..000 000000005.

STATEMENT OF THE CASE ...............

SUMMARY OF ARGUMENT ................

ARGUMENT:

I.

THE ILLEGAL ACTS OF A PRIVATE PARTY

DO NOT CONSTITUTE “STATE ACTION”,

WHERE A POLICE OFFICER WAS MERELY

PRESENT AT THE SCENE OF THE EVIC.-

1; EP PPPPrerrrrrrrrrrrrrerrrrrrrrrrieee

THE FOURTH AMENDMENT IS NOT IMPLI-

CATED BY THE CONDUCT IN THIS CASE

SINCE THERE WAS NO SEARCH FOR, OR

SEIZURE OF, EVIDENCE WHICH COULD BE

USED AGAINST PETITIONERS OR WHICH

VIOLATED PETITIONERS’ FOURTH AMEND.

MENT PRIVACY RIGHTS ................

A.

THE FOURTH AMENDMENT IS NOT IM.

PLICATED BY THE RELOCATION OF

THE PETITIONERS’ MOBILE HOME

SINCE THERE WAS NO SEARCH AND

NO HOLDING OF EVIDENCE WHICH

COULD BE USED AGAINST PETITION-

_- DPPPPPTITITTIT Tritt tt

tr

w'

12

B.

THE FOURTH AMENDMENT IS NOT IM.

PLICATED BY THE RELOCATION OF

THE PETITIONERS’ MOBILE HOME

SINCE THERE WAS NO INTRUSION ON

THE PETITIONERS’ EXPECTATION OF

PRIVACY WITHIN THE MEANING OF

THE FOURTH AMENDMENT ........

THE FOURTH AMENDMENT IS NOT IM.

PLICATED BY THE RELOCATION OF

THE PETITIONERS’ MOBILE HOME

SINCE THE PETITIONERS’ GENERAL

RIGHT TO PRIVACY, THE RIGHT TO BE

LET ALONE, IS NOT IN ITSELF THE

SUBJECT OF FOURTH AMENDMENT

PUPCRCEUEE coccccscnecuceesssusase

THE ACTION OF ILLEGALLY EVICTING PE.

TITIONERS FROM A LEASED MOBILE HOME

LOT DID NOT AMOUNT TO A VIOLATION OF

PETITIONERS’ DUE PROCESS RIGHTS ...

IV.

PETITIONERS, WHOSE PROPERTY HAS

BEEN DAMAGED AS TH? INCIDENTAL

RESULT OF AN ILLEGAL EVICTION,

SHOULD NOT BE AFFORDED A 42 U.S.C.

§ 1983 CAUSE OF ACTION ...............

COL GREGS csvuucccecntausescacassabieu

17

iv

TABLE OF AUTHORITIES

CASEs: PAGE

Bonner v. Coughlin, 517 F.2d 1311 (7th Cir. 1975) .. 37

Board of Regents of State Colleges v. Roth, 408

6 ERE EE era 36

Boyd v. United States, 116 U.S. 616 (1885) ..... 14

Camara v. Municipal Court, 387 U.S. 523 (1967) .. 16

Cardwell v. Lewis, 417 U.S. 583 (1974) ....... 19, 21, 28

City of Chicago v. Steamship Lines, 159 N.E. 301,

i i MD. «é¢decckéceeedseceeces 31

Collins v. Harker Heights, 503 U.S. (No. 90-

1279, February 26, 1902) .................. 29

Coniston Corp. v. Village of Hoffman Estates, 844

Pee a ee ED cccccccccccccccsece 28

Daniels v. Williams, 474 U.S. 327 (1986) ..... 27, 32, 38

Den v. The Hoboken Land and Improvement Co.,

59 U.S. (18 How.) 272 (1855) .............. 17, 28

Doty v. Burdick, 83 Ill. 473 (1876) ............ 31

Easter House v. Felder, 910 F.2d 1387, cert. de-

nied, _._.. US. ___ (7th Cir. 1980) ....... 33

Eisenstadt v. Baird, 405 U.S. 438 (1972) ...... 30

Entick v. Carrington, 19 St. Tr. 1029 (1765) .... 13, 15

Ferguson v. Skrupa, 372 U.S. 726 (1963) ...... 2s

Frank v. Maryland, 359 U.S. 360 (1959) ...... 15

Fuentes v. Shevin, 407 U.S. 67 (1972) ...... 11, 25, 31

Graham v. Connor, 490 U.S. 386 (1989) ....... 31

Griswold v. Connecticut, 381 U.S. 479 (1965) .... 29, 30

Harrah Independent School District v. Martin, 440

sf . Ee arc 30

V

Holloway v. Walker, 790 F.2d 1170 (Sth Cir. 1986) . . 33

Hudson v. Palmer, 468 U.S. 517 (1984) ....... 21, 32

Illinois v. Andreas, 463 U.S. 765 (1983) ....... 20

Interstate Commerce Commission v. Baird, 194

Re RRR, RE CCT ren ape 14

Katz v. United States, 389 U.S. 347 (1967) ... 18, 24, 25

Lochner v. New York, 198 U.S. 45 (1905) ..... 28

Loretto v. Teleprompter Manhattan CATV Corp.,

og OE eee 25

Loving v. Virginia, 388 U.S. 1 (1967) ......... 30

Lugar v. Edmondson Oi! Co. Inc., 457 U.S. 922

EE: widbeabeneceedcecesanenbeescheseeuée 8,9

Meyer v. Nebraska, 262 U.S. 390 (1923) ....... 30

Moore v. City of East Cleveland, 431 U.S. 494

St ‘Svaktheandddbiheeatensecsceneadieees 29, 30

Moose Lodge No. 107 v. Irvis, 407 U.S. 168 (1972) .. s

Monell v. New York Department of Social Services,

Se ee SP EE dencaneecenecssséscessus 35

Monroe v. Pape, 365 U.S. 167 (1961) .......... 35, 36

National Communications v. Michigan Public Ser-

vice, 789 F.2d 370 (6th Cir. 1986) .......... 33

O'Connor v. Ortega, 480 U.S. 709 (1987) ...... 26

Oliver v. United States, 466 U.S. 170 (1984) .... 18, 25

Olmstead v. United States, 277 U.S. 438 (1927) ... 18

Palko v. Connecticut, 302 U.S. 319 (1937) ..... 29

Parratt v. Taylor, 451 U.S. 527 (1981) .... 28, 32, 33, 35

Payton v. New York, 445 U.S. 573 (1980) ..... 20

Paul v. Davis, 424 U.S. 698 (1976) ........... 37

People v. Evans, 516 N.E.2d 817, 163 Ill. App. 3d

St Gh MY didtheceakdéucdtushignuanees 31

Pierce v. Society of Sisters, 268 U.S. 510 (1925) .. 30

vi

Pierson v. Ray, 386 U.S. 547 (1967) .......... 1]

Poe v. Ullman, 367 U.S. 497 (1961) ........... 40

Procunier v. Navarette, 434 U.S. 555 (1978) .... 11

Pruneyard Shopping Center v. Robins, 447 U.S.

Ue ME wands nedttuebsewesneesoocnoesessc 25

Rakas v. Illinois, 489 U.S. 128 (1978) ......... 22

Regents of University of Michigan v. Ewing, 474

ey Se CE didn dacuiedésdneudeoceeees 28, 30

Rizzo v. Goode, 423 U.S. 362 (1976) ........... 11

Rochin v. California, 342 U.S. 165 (1952) ..... 30

Rosenthal v. City of Crystal Lake, 525 N.E.2d

1176, 171 Ill. App. 3d 428 (Ill. 1988) ....... 33

Roe v. Wade, 410 U.S. 113 (1973) ............. 20

Smith v. Maryland, 442 U.S. 735 (1979) ...... 22

Snyder v. Massachusetts, 291 U.S. 97 (1934) .... 29

South Dakota v. Opperman, 428 U.S. 364 (1976) .. 20

Teras v. Brown, 460 U.S. 730 (1983) .......... 20, 21

United States v. Chadwick, 433 U.S. 1 (1977) .. 20, 22

United States v. Dionisio, 410 U.S. 1 (1973) .... 20)

United States v. Jacobsen, 466 U.S. 109 (1984) .. 21

United States v. Karo, 468 U.S. 705 (1984) ..... 22

United States v. Place, 462 U.S. 696 (1983) .... 22

United States v. Poller, 43 F.2d 911 (2d Cir.

DD ennceeuecdsnceunscsesntenceesiesscesse 17

United States v. Salerno, 481 U.S. 739 (1987) .. 27

Warden v. Hayden, 387 U.S. 294 (1967) ....... 18

Weeks v. United States, 232 U.S. 383 (1914) .... 15

Wilkes v. Wood, 98 Eng. Rep. 489 (1763) ..... 13

Wyman v. James, 400 U.S. 309 (1971) ........ 19

Zinermon v. Burch, 494 U.S. 113 (1990) ...... 27

Vii

CONSTITUTIONAL PROVISIONS AND STATUTES:

Fifth Amendment to the United States Constitu-

TED: cendcccndcecedacneuscesuccetasncessses 14

Fourteenth Amendment to the United States Con-

RED. encccceevconceernconscnccessckse passim

Fourth Amendment to the United States Consti-

GEE Secducececccesecscvceseuaseccsseces passim

Se EE Kandcedenescccevescesnsoesss passim

LAW REVIEW ARTICLEs:

Concerning Searches and Seizures, 34 Harv. L.

Se EE Sudecudecnsecansencadeseses 13

Rethinking the Fourth Amendment, 1981 Sup. Ct.

Sts GP ED cebcdcouccedéccdcacuséeuceces 23

The Uncertain Protection of Privacy by the Su-

preme Court, 1979 Sup. Ct. Rev. 173 (1979) .. 23, 24

In THe

Supreme Court of the United States

OcToRER TERM, 1991

Petitioners,

Vas.

COUNTY OF COOK, ET AL.,

Respondents.

Court Of Appeals For The Seventh Circuit

BRIEF FOR RESPONDENTS

OPINIONS BELOW

Certiorari was granted to review the judgment of the

United States Court of Appeals for the Seventh Circuit

in Soldal v County of Cook, 923 F.2d 1241 (7th Cir. 1991),

modified, en banc, in Soldal v. County of Cook, 942 F.2d

1073 (1991). The opinion of the United States District

Court for the Northern District of Illinois is unreported.

Cupies of these opinions may be found within the parties’

joint appendix at pages 3-89.

-

STATEMENT OF THE CASE

The instant action arose out of a landlord/tenant dispute

between petitioners, Edward (hereinafter, Soldal) Mary,

Jimmy, Alena, Joseph and Jessie and Willoway Terrace

(Willoway), a mobile home park owned by Terrace Prop-

erties, one of the respondents herein. (Complaint, par. 2)

On September 4, 1987, two Willoway workers, acting with-

out a court order and in contravention of the Illinois Fore-

ible Entry and Detainer Act (Ill. Rev. Stat. 1987, ch. 110.

par. 9-101 ef seq.) towed petitioners’ mobile home off the

park premises. At the behest of respondent Cook County

Sheriff's Officer Lieutenant Jones, Willoway temporarily

stored petitioners’ mobile home at a construction company

located next door to the park. (R. 56, Attachment C) Re-

spondent Cook County Deputy Sheriff Shawn O'Neill was

present merely to keep the peace during the eviction. (R.

o6, Attachment C) Five days later, on September 9, 1987,

the Circuit Court of Cook County ordered petitioners’

mobile home returned to Willoway. (Complaint, par. 19)

During the eviction and the subsequent towing, peti-

tioners’ mobile home incurred incidental property damage:

torn skirting, damaged external sewer and water boxes

and damaged internal household items. (Complaint, pars.

11, 15) One year later, petitioners brought a 42 U.S.C.

¥ 1983 cause of action in the District Court for the North-

ern District of Illinois, Eastern Division, seeking redress

from respondents for the property damage incurred dur-

ing the illegal eviction. Respondents are inter alia, Ter-

race Properties, Inc., Margaret Hale, Willoway’s manager,

and several lower echelon officers of the Cook County

Sheriff's Office, in their individual capacities (collective-

ly, respondents). (Complaint, pars. 4, 6)

x

Count I of petitioners’ complaint, which is at issue in

the instant action, alleged that respondents “conspired

together to violate [petitioners’ rights under the Fourth

and Fourteenth Amendments to the United States Con-

stitution] * * * by unlawfully evicting [petitioners], remov-

ing them from the trailer park, and destroying their prop-

erty.” (Complaint, pars. 31, 33) The District Court granted

respondents’ motion for summary judgment, finding that

petitioners failed to establish the requisite state action

to sustain a § 1983 cause of action. (J.A. 19-21)

Petitioners appealed the District Court’s judgment to

the United States Court of Appeals for the Seventh Cir-

cuit. A majority of the Court of Appeals affirmed the

lower court’s grant of summary judgment in favor of re-

spondents. (J.A. 45) However, to reach the merits of peti-

tioners’ constitutional claims, the Court of Appeals “‘as-

sumed” that petitioners had established the existence of

a conspiracy amongst respondents. (J.A. 38) The Court

of Appeals found that petitioners’ Fourth Amendment and

Due Process rights were not violated by respondents’ ac-

tions. (J.A. 40-41, 42, 66)

Petitioners now appeal the Court of Appeals’ judgment

to this Court. Given the summary judgment posture of

this cause, the following facts are taken in a light most

favorable to petitioners. Prior to the eviction at issue here,

on August 21, 1987, Willoway filed suit against petitioners

in the Circuit Court of Cook County, Illinois. Pursuant

to the Illinois Forcible Entry and Detainer Act, Willoway

sought possession of the lot upon which petitioners’ mobile

home was located. The cause was set for hearing on Sep-

tember 22, 1987. (Complaint, par. 10) However, on Sep-

tember 4, 1987, Willoway decided to evict petitioners with-

gut a court order. Without informing the Cook County

Sheriff's Office of their intention to evict petitioners with-

=o

out a court order, Willoway management requested the

presence of a deputy sheriff to maintain the peace dur-

ing the eviction. (R56, Attachment C) Therefore, Cap-

tain Jackson dispatched Deputy Sheriff O'Neill to Wil-

loway, instructing him to “stand by to maintain peace.”

(R. 56, Attachment C)

At approximately 1:00 p.m., two workers for Willoway

arrived at the lot upon which petitioners’ mobile home

rested and began preparing the mobile home for removal.

(R. 56, Attachment E, pp. 12-14) Deputy Sheriff O'Neill

arrived at the lot at approximately the same time and

remained in his squad car without speaking to the Wil-

loway workers. (R. 56, Attachment E, p. 15) Petitioner

Solda! left his mobile home and asked the workers what

they were doing. They responded, “{AJsk the sheriff depu-

ty.”’ (R. 56, Attachment E, p. 16) Soldal then asked Deputy

Sheriff O'Neill “|wJhat [he was] going to do about this?”

’Neill responded that “he was there to see that [Soldal]

didn’t interfere with Willoway’s workers” and that he was

‘just doing what the chief told him.” (R. 56, Attachment

E, pp. 17-18) After a series of telephone calls with his

attorney, Soldal telephoned either Chief Wittsman or Cap-

tain Levy of the Cook County Sheriffs Office. One of

these men indicated that he was unaware of any deputy

sheriff being dispatched to Willoway. (R. 56, Attachment

E, pp. 24-25)

Lieutenant Jones arrived at the office of the park man-

agement at approximately 1:30 p.m. Ms. Hale informed

Lieutenant Jones that Willoway was acting pursuant to

a court order. However, since Ms. Hale was unable to

produce an eviction order, Lieutenant Jones contacted

Captain Jackson to determine the status of the eviction

proceedings. Captain Jackson informed Lieutenant Jones

that the eviction proceedings were still pending. Lieuten-

ant Jones then realized that Willoway was not proceeding

pursuant to a court order. (R. 56, Attachment C)

At this time, petitioner Soldal stated to Lieutenant Jones

that he wanted to file a complaint against Willoway for

criminal trespass to property. (R. 56, Attachments C and

E, pp. 43-44) Lieutenant Jones then spoke with Assistant

State’s Attorney Dana Crowley. She advised Lieutenant

Jones that the elements of criminal trespass were not

present because possession was disputed between the par-

ties. (R. 56, Attachment C) Jones informed Soldal that

the “D.A. * * * said [he] couldn’t file any complaint, that

it was between the landlord and tenant. . . .” (R. 56, At-

tachment E, p. 46)

Simultaneously, the two Willoway workers were pro-

ceeding with the eviction, which resulted in the property

damage at issue here. Respondent Sergeant James Hunt,

of the Cook County Sheriff's Office, then escorted peti-

tioners to a nearby motel, where Willoway had arranged

four nights’ paid accommodations. (R. 56, Attachment C)

SUMMARY OF ARGUMENT

This action arose out of a landlord/tenant dispute be-

tween private parties, which resulted in an illegal evic-

tion with incidental property damage. Petitioners attempt

to capitalize upon the mere presence of lower echelon of-

ficers of the Cook County Sheriff's Office during the evic-

tion to convert their claim into a federal civil rights cause

under 42 U.S.C. § 1983. Under the guise of § 1983, peti-

tioners seek federal redress for what is essentially a state

court action for damages.

~

To accomplish this, petitioners invoke the Fourth Amend-

ment of the United States Constitution, alleging that tow-

ing their mobile home constituted a Fourth Amendment

seizure. However, the Fourth Amendment is inapplicable

to the instant cause. The origins of the Fourth Amend-

ment establish that the evil at which the Amendment is

directed is a governmental search or seizure which invades

a person’s privacy and which seeks to produce evidence

capable of being used against that person. In keeping with

those origins, decisions of this Court have consistently

held that the Amendment protects privacy rights and is

not applicable where property rights alone are involved.

Not all aspects of privacy, however, are subject to Fourth

Amendment protection. There exists a general right to

privacy, the right to be let alone in solitude. This general

right to privacy, in different contexts, is entitled to pro-

tection from various sources, mainly the property laws

of the individual states. The Fourth Amendment, however,

does not protect this privacy interest. Only where an in-

trusion on solitude includes a search or seizure for the

potential disclosure of information are there any Fourth

Amendment implications.

The respondents’ relocation of the petitioners’ mobile

home intruded upon no privacy interest subject to Fourth

Amendment protection. There was no gathering or at-

tempt to gather information for any purpose. The respon-

dents learned nothing which the petitioners reasonably ex-

pected to remain private. The facts which the petitioners

have pleaded invoke only the concerns of local property

law. To the extent, then, that the complaint alleged a

Fourth Amendment violation, it was properly dismissed.

Similarly, petitioners seek redress through the substan-

tive component of the Due Process Clause for the prop-

erty damage incurred during the eviction. Substantive due

~

— (er

process does not apply under the facts of this case. Essen-

tially, petitioners seek to protect their right to be free

from an illegal eviction and incidental property damage.

This interest does not rise to the level of fundamental

interests to which this Court has extended substantive

due process protection. Rather, procedural due process

is applicable under the instant set of facts.

Here, to the extent that the actions of the private par-

ties are attributable to the respondent deputy sheriffs,

the behavior of these lower echelon officials is “random

and unauthorized.” The Cook County Sheriff's Office per-

sonnel were not acting pursuant to State procedure. Rather

than effectuating State policy, their conduct was an aber-

ration. The Court of Appeals properly recognized that

Parratt v. Taylor, 451 U.S. 527, 68 L.Ed.2d 420, 101 S.Ct.

1908 (1981) and its progeny govern the instant action. (J.A.

38-41)

Petitioners have “‘adequate state remedies” for the prop-

erty damage they incurred during the illegal eviction. They

are entitled to post-deprivation redress through the State

of Illinois’ tort claims mechanism. Therefore, Illinois has

provided petitioners with all the process they are due.

Under these facts, petitioners’ right to procedural due pro-

cess has not been violated.

Through § 1983, petitioners seek to convert a garden

variety state tort claim for property damage into a federal

constitutional cause of action. Petitioners advocate inter-

preting § 1983 and the constitutional Amendments at issue

here in a manner that is completely devoid of the notion

of federalism. Petitioners attempt to ‘“‘federalize” the law

of torts, thereby usurping a body of law that is properly

relegated to the States.

alien

ARGUMENT

THE ILLEGAL ACTS OF A PRIVATE PARTY DO NOT

CONSTITUTE “STATE ACTION”, WHERE A POLICE OF-

FICER WAS MERELY PRESENT AT THE SCENE OF

THE EVICTION.

In this case, Willoway Terrace, the owner of the mobile

home park, decided to remove the petitioners’ mobile home

from its pad. Summoned by an agent of Willoway, Cook

County Sheriff's police officers came to Willoway to main-

tain the peace during the eviction.

Respondents submit that any illegal actions by the pri-

vate party, Willoway, should not be ascribed to the gov-

ernment merely because a governmental police officer was

present to maintain the peace. If this were true, hundreds

of differences of opinion between private citizens would

be transformed into “state action”, merely because a po-

lice officer arrives to mediate the problem, or to maintain

the peace. Moose Lodge No. 107 v. Irvis, 407 U.S. 168,

32 L.Ed.2d 627, 92 S.Ct. 1965 (1972).

In Moose Lodge, this Court held that “the decision to

discriminate could not be ascribed to any government deci-

sion;” here, similarly, the decision to pull the mobile home

from its resting place cannot be ascribed to any govern-

ment decision. To be “under color of” state law within

§ 1983, respondents urge that there be at least some sig-

nificant action by a state or subdivision. ‘Careful adher-

ence to the ‘state action’ requirement . . . avoids imposing

on the State, its agencies or officials, responsibility for

conduct for which they cannot fairly be blamed.” Lugar

v. Edmondson Oil Co., 457 U.S. 922, 73 L.Ed.2d 482, 102

S.Ct. 2744 (1982).

wiiin

This Court, in Lugar, enunciated a two pronged test

to establish the existence of “state action”’:

First, the deprivation must be caused by the exer-

cise of some right or privilege created by the State

or by a rule of conduct imposed by the state or by

a person for whom the state is responsible. . . . Sec-

ond, the party charged with the deprivation must be

a person who may fairly be said to be a state actor.

This may be because he is a state official, because

he acted together with or has obtained significant aid

from state officials, or because his conduct is other-

wise chargeable to the state. Lugar, 457 U.S. at 937.

Under the circumstances of this case, the only way there

can be the requisite state action is if there were a con-

spiracy between the public and private parties. The pri-

vate parties actually relocated petitioners’ mobile home,

not the governmental officers. The necessity of establish-

ing a conspiracy ws recognized by the District Court.

(R. 69, pp. 11, 12) retitioners also recognized the need

for a conspiracy. “At all times material . . . all the deputy

sheriff defendants . . . were acting jointly and/or in con-

spiracy with these [civilian] defendants. . . .’’ (Complaint,

par. 7) In Count I of their complaint, petitioners alleged

[Respondents] . . . reached an understanding, engaged

in a sequence of events or joint course of conduct and/or

otherwise agreed and conspired together. . .”” (Complaint,

par. 31) “These conspirac(ies)/joint action(s) was/were ef-

fected under color of law. . . .” (Complaint, par. 32)

It was the lack of evidence of a conspiracy that led the

District Court to grant the governmental respondents’ mo-

tion for summary judgment. (R. 69, p. 19) Implicit in that

finding is that the actions of the deputy sheriffs did not

rise to the level of state action, or the “significant aid”

portion of the second prong of the Lugar test.

alin

In contrast, the Court of Appeals, in the panel opinion,

concluded that there was evidence of a conspiracy. The

court stated:

(Mr. Soldal] was certainly entitled to call on the police

to obviate the need for self-help by preventing what

undoubtedly was a criminal trespass to his property,

since the trespassers were not acting under even a

colorable entitlement. .. . The police prevented Soldal

from exercising his statutory right to defend his prop-

erty. That is state action. (J.A. 37)

In the en bane opinion, the Court of Appeals reiterated

that the deputy sheriffs ‘‘prevented’”’ petitioner Soldal

from exercising his right to self-help, but stated that that

might not have made the police actual participants. (J.A.

54) The en banc opinion then “assumes” a conspiracy.'

Officer O'Neill is the vehicle that the appellate court

apparently used to find state action. Presumably, it was

the alleged words he spoke to Soldal that the Court used

' Petitioners sued seven members of the Sheriff's Office, in their

individual capacities. The evidence against Chief Wittsman and

Captain Levy is that Soldal talked to one of these two men, who

was ay unaware that a Cook County deputy sheriff had been

dispate to Willoway. Captain Jackson assigned Officer O'Neil!

to standby and maintain peace during the eviction. Rather than

“conspiring” with Ms. Hale, Lieutenant Jones was merely attempt-

ing to determine whether Willoway had a court order to proceed

with the eviction. Lieutenant Jones attempted to facilitate peti-

tioner Soldal in filing a criminal ae against Willoway. How-

ever, after discussing the case with the prosecutor's office, lieuten

ant Jones determined that Willoway had not e in criminal

behavior. Sergeant Hunt was present and led the Soldals to the

motel after the eviction. There was no evidence offered by peti-

tioners against either Officers Haritos or Vaid to suggest that they

were even present at the scene. Those are the seven defendants.

Only one of them spoke to the trailer park manager. There sim-

ply was no evidence that 7 oe with each other or the

private party respondents to deprive petitioners of their constitu-

tional rights.

nile

to conclude that Soldal was prevented from engaging in

self-help. Yet, in an individual capacity lawsuit, one can-

not be held accountable for the acts of another but only

for one’s own actions. Rizzo v. Goode, 423 U.S. 362, 371,

46 L.Ed.2d 561, 569, 96 S.Ct. 598, 605 (1976). Assuming,

argquendo, that the words of Officer O'Neill created state

action, the named respondents cannot, under existing case

law, be saddled with that same conclusion. Only what each

respondent did personally can be used against him to de-

termine if, in each individual case, there was state action.

It is abundantly clear that the actions of the police officer

respondents do not come remotely close to the state action

requirement. Without state action, a federal court does

not have jurisdiction.

Petitioners have failed to establish a conspiracy between

the private party respondents and the public respondents.

Necessarily, viable § 1983 claims against both the private

and public respondents require the existence of a conspir-

acy. Petitioners have failed to establish such a conspiracy.

Therefore, their cause of action must fail.?

2 The police officer respondents are being sued in their individual

capacities. They are, therefore, entitled to qualified immunity. Pier-

son v. Ra a U.S. 547, 18 L.Ed.2d p i. ~~ hy

Because of the summary judgment posture of this cause, the issue

of qualified immunity was never lined, Assuming this Court

determines that one or more of the named respondents’ conduct

constituted state action and that the Fourth Amendment applies,

then those defendants are entitled to qualified immunity. In Pro-

cunier v. Navarette, 434 U.S. 555, 55 L.Ed.2d 24, 98 S.Ct. 855

(1978), this Court held that public employees were entitled to im-

munity unless they knew or reasonably should have known that

their actions violated a person's constitutional rights. At the time

of this occurrence, the applicability of the Fourth Amendment to

these facts was not clearly established. In Fuentes v. Shevin, 407

U.S. 67, 32 L.Ed.2d 556, 92 S.Ct. 1983 (1971), this Court declined

to decide the applicability of the Fourth Amendment. As the Court

(Footnote continued on following page)

~_ =

THE FOURTH AMENDMENT IS NOT IMPLICATED BY

THE CONDUCT IN THIS CASE SINCE THERE WAS NO

SEARCH FOR, OR SEIZURE OF, EVIDENCE WHICH

COULD BE USED AGAINST PETITIONERS OR WHICH

VIOLATED PETITIONERS’ FOURTH AMENDMENT PRI-

VACY RIGHTS.

The petitioners contend that the conduct of the respon-

dents violated the Fourth Amendment of the United States

Constitution. In particular they contend that the reloca-

tion of their mobile home and its contents was “governed

by” the Fourth Amendment because “the Fourth Amend-

ment applies to all seizures whether or not they occur

in the context of a criminal case.”’ (Pet. Br. 15) The peti-

tioners argue further that the respondents’ conduct vio-

lated petitioners’ Fourth Amendment possessory rights

in their property and petitioners’ privacy rights “‘to be

let alone” from governmental intrusion.

The origins and development of Fourth Amendment

principles call for the rejection of petitioners’ arguments.

The Fourth Amendment protects a person from searches

and seizures aimed at obtaining evidence against that per-

son. It protects a person’s privacy, the right to be free

from governmental prying to obtain evidence which might

be used in some fashion against that person. An interfer-

ence which affects only property interests, without an ac-

companying search for evidence or gathering of informa-

tion, is not the subject of Fourth Amendment protection.

2 continued

of Appeals noted in its en bane opinion, this is a question of “sur-

prising novelty” for which there is no clear exposition of author-

ity. (J.A. 55) Given the unsettled history, this is the classic in-

stance where qualified immunity applies.

—13—

Here, there was a relocation of petitioners’ mobile home,

an interference with property rights, but not a seizure

for purposes of the Fourth Amendment. The mobile home

was returned to its owners. It was neither taken nor held

for evidentiary purposes. There was no search, no prying

within the mobile home, and no gathering of information

concerning the petitioners. For these reasons, the petition-

ers’ claim of a Fourth Amendment violation is without

merit.

A.

THE FOURTH AMENDMENT IS NOT IMPLICATED BY

THE RELOCATION OF THE PETITIONERS’ MOBILE

HOME SINCE THERE WAS NO SEARCH AND NO FOLD-

ING OF EVIDENCE WHICH COULD BE USED AGAINST

PETITIONERS.

The Fourth Amendment to our Constitution was a di-

rect response to the unpopular searches and seizures which

had previously arisen under General Warrants in England

and Writs of Assistance in the Colonies. The famous English

trials of Wilkes v. Wood, 98 Eng. Rep. 489 (1763) and En-

tick v. Carrington, 19 St. Tr. 1029 (1765), describe the

Secretary of State's practice of issuing, without probable

cause, general warrants authorizing the search of a citi-

zen’s home and seizure of his personal papers for examina-

tion by the Secretary. In similar fashion in the Colonies,

Writs of Assistance authorized general searches and sei-

zures to discover smugglers and confiscate their goods.

Frankael, Concerning Searches and Seizures, 34 Harv. L.

Rev. 361, 364 (1920). Writing in Entick v. Carrington, 19

St. Tr. at 1073, Lord Camden linked the evil inherent in

unreasonable searches to that of compelled self accusation:

It is very certain, that the law obligeth no man to

accuse himself; because the necessary means of com-

—14—

pelling self-accusation, falling upon the innocent as

well as the guilty. would be both cruel and unjust;

and it should seem, that search for evidence is dis-

allowed upon the same principle. There too the inno-

cent would be confounded with the guilty.

Commenting on the origins of the Fourth Amendment

over a century later, the Court in Boyd v. United States,

116 U.S. 616, 630, 29 L.Ed. 746, 751, 6 S.Ct. 524, 534

(1885), similarly likened that Amendment to what had be-

come the Fifth Amendment privilege against self-incrimi-

nation. At issue in Boyd was the propriety of a court

order that the petitioner produce an invoice for twenty-

nine cases of plate glass which were the subject of a for-

feiture for a violation of customs laws. Treating the order

as an attempt to seize the papers contrary to the Fourth

Amendment and viewing the case as quasi-criminal in na-

ture, the Court again drew a parallel between the Fourth

and Fifth Amendments:

Breaking into a house and opening boxes and drawers

are circumstances of aggravation; but any forcible and

compulsory extortion of a man’s own testimony or

of his private papers to be used as evidence to con-

vict him of a crime or to forfeit his goods is within

the condemnation of that judgment. In this regard

the Fourth and Fifth Amendments run almost into

each other. 116 U.S. at 630.

That the Fourth Amendment was directed against

searches for, and seizures of, evidence to be used against

a citizen was reiterated in /nterstate Commerce Commis-

sion v. Baird, 194 U.S. 25, 48 L.Ed. 860, 24 S.Ct. 563

(1903). In Baird, the respondent argued that a statute re-

quiring production of certain contracts violated his Fourth

Amendment rights against unreasonable search and sei-

zure. Id. at 35. With reliance on Boyd’s analogy between

the Fourth and Fifth Amendments, the Court dismissed

=- 1§—

the argument because, by statute, the respondent was im-

munized from any prosecution which might be based on

the documents produced. /d. at 46, Since the items to be

seized could not be used against the respondent, there

were no Fourth Amendment implications.

The analogy drawn in all of these earlier cases between

the Fourth and Fifth Amendments makes it clear that

the core of the Fourth Amendment pertains to the search

and seizure of evidence to be used against people. The

concern in Entick v. Carrington, 19 St. Tr. at 1074, for

example, was whether “a right of search for the sake of

discovering evidence ought in any case to be allowed. . . .”

Later cases which discussed the origins of the Fourth

Amendment moved away from a comparison of that Amend-

ment to the privilege against self-incrimination. Each of

them, however, continued to place the roots of the Fourth

Amendment in the colonists’ reaction to the pre-revolu-

tionary use of general warrants to invade the homes and

privacy of persons in search of evidence. The case of Weeks

v. United States, 232 U.S. 388, 58 L.Ed. 652, 34 S.Ct. 341

(1914), concerned a warrantless search of a home to sup-

port a charge of illegal transportation of lottery tickets.

This Court traced the origin of the Fourth Amendment

to the earlier reaction against general warrants and the

abuse of governmental authority to search and to seize

citizens’ private papers “in support of charges, real or

imaginary, made against them.” /d. at 390,

The Court in Frank v. Maryland, 359 U.S. 360, 365,

3 L.Ed.2d 877, 882, 79 S.Ct. 804, 808 (1959), noted the

earlier comparisons of the Fourth and Fifth Amendments,

but found that question irrelevant in determining what

is protected by the Fourth Amendment:

Certainly it is not necessary to accept any particu-

lar theory of the interrelationship of the Fourth and

—16—

Fifth Amendments to realize what history makes

plain, that it was on the issue of the right to be

secure from searches for evidence to be used in crim-

inal prosecutions or for forfeitures that the great bat-

tle for fundamental liberty was fought.

The Court in Frank went on to hold that there were no

Fourth Amendment implications in a housing inspector's

attempted warrantless inspection of a home since, “‘[nJo

evidence for criminal prosecution is sought to be seized.”

359 U.S. at 366.

The later opinion in Camara v. Municipal Court, 387

U.S. 523, 18 L.Ed.2d 930, 87 S.Ct. 1727 (1967), expressed

no quarrel with the analysis of the Fourth Amendment’s

purpose in Frank, but only with the limitation of the

Amendment’s protection to cases involving criminal prose-

cution. The Camara opinion refers repeatedly to the activ-

ity of the housing inspector as an “inspection,” a “search,”

or an “administrative search.” Whatever the terminology,

the Court’s concern was that the inspector was conduct-

ing a warrantless search for information. Whether the

fruits of the search were to further prosecution of the

criminal laws or to enforce the building codes, the Court

found immaterial. What is material for Fourth Amend-

ment purposes is that the inspector looks for information

to be used as evidence and that the “inspections of the

kind we are here considering do in fact jeopardize ‘self-

protection’ interests of the property owner.” 387 U.S. at

531. As a result, the Court held that a housing inspec-

tion required either consent, exigent circumstances, or a

warrant.

What is apparent in the origins of the Fourth Amend-

ment, and not contradicted by any of its later develop-

ment, is that the Amendment is not applicable to every

governmenta! trespass or taking of property. The drafters

of the Article directed it to a very specific problem, gov-

=

ernment’s invasion for the purpose of obtaining evidence

to be used in some fashion against its citizens. This of-

fers the only explanation for the Court’s conclusion that

the Amendment “has no reference to civil proceedings for

recovery of debts, of which a search warrant is not made

part.”’ Den v. The Hoboken Land and Improvement Co.,

59 U.S. (18 How.) 272, 285, 15 L.Ed. 372 (1856).

That the Fourth Amendment has no application to the

facts of this case is apparent in Justice Learned Hand’s

statement of the purpose of the Amendment:

[I]t is only fair to observe that the real evil aimed

at by the Fourth Amendment is the search itself,

that invasion of a man’s privacy which consists in

rummaging about among his effects to secure evi-

dence against him. United States v. Poller, 43 F.2d

911, 914 (2d Cir. 1930).

In this case, there was no securing of evidence against

the petitioners. There was no rummaging about among

their effects and no search. The respondents seized noth-

ing to be used against the petitioners. As a result of their

actions, respondents learned nothing about the petitioners

which they did not know before. For these reasons, there

was no violation of petitioners’ Fourth Amendment rights

and the decisions to deny relief upon petitioners’ complaint

should be affirmed.

B.

THE FOURTH AMENDMENT IS NOT IMPLICATED BY

THE RELOCATION OF THE PETITIONERS’ MOBILE

HOME SINCE THERE WAS NO INTRUSION ON THE

PETITIONERS’ EXPECTATION OF PRIVACY WITHIN

THE MEANING OF THE FOURTH AMENDMENT.

The “invasion of a man’s privacy,” noted in the above

quote from Judge Learned Hand, has become the touch-

stone of all modern analysis of the Fourth Amendment.

oilinn

Oliver v. United States, 466 U.S. 170, 177, 80 L.Ed.2d

214, 223, 104 S.Ct. 1735, 1740-41 (1984). Nowhere is this

more apparent than in the differences between two ma-

jor eavesdropping cases of this century. In Olmstead v.

United States, 277 U.S. 438, 72 L.Ed. 944, 48 S.Ct. 564

(1927), government agents obtained evidence by tapping

the telephone lines of the defendants’ homes and offices.

The court found no Fourth Amendment violation because

there was no physical entry of the premises. 277 U.S. at

464.

Forty years later, the Court overruled Olmstead in a

case where agents electronically monitored the defendant’s

conversation in a phone booth. Katz v. United States, 389

U.S. 347, 19 L.Ed.2d 576, 88 S.Ct. 507 (1967). In so doing

the Court refused to characterize the issue in terms of

whether the telephone booth was a “constitutionally pro-

tected area.”” Quoting Warden v. Hayden, 387 U.S. 294,

304, 18 L.Ed.2d 782, 790, 87 S.Ct. 1642, 1648 (1967), the

Court announced that the “premise that property inter-

ests control the right of the Government to search and

seize has been discredited.’’ Katz, 389 U.S. at 352. The

Court then rephrased the issue, not in terms of property

interests, but privacy interests, i.e., whether the Govern-

ment’s act of listening to the petitioner’s words ‘‘violated

the privacy upon which he justifiably relied while using

the telephone booth and thus constituted a ‘search and

seizure’ within the meaning of the Fourth Amendment.”’

389 U.S. at 353.

In Warden v. Hayden, 387 U.S. 294, 18 L.Ed.2d 782,

87 S.Ct. 1642 (1967), the Court had at length reviewed

the earlier notion that Fourth Amendment analysis in-

volved a balancing of competing property interests in the

place searched or the item seized. After looking at the

history and development of the Amendment, the Court

= =

rejected the property rights analysis and concluded that

the Fourth Amendment protects privacy rather than prop-

erty. “We have recognized that the principal object of the

Fourth Amendment is the protection of privacy rather

than property, and have increasingly discarded fictional

and procedural barriers rested on property concepts.”” 387

U.S. at 304.

After Katz and Hayden, the fact that the Fourth Amend-

ment protects privacy was again noted in Wyman v. James,

400 U.S. 309, 27 L.Ed.2d 408, 91 S.Ct. 381 (1971), which

considered the constitutionality of a statute allowing for

termination of weifare benefits to a recipient who refused

a home visit by a caseworker. The Court first noted that

it “consistently has been most protective of the privacy

of the dwelling.” 400 U.S. at 316. The Court, though, up-

held the statute, in part because the protection of privacy

was not a factor “for the seemingly obvious and simple

reason that we are not concerned here with any search

by the New York social service agency in the Fourth

Amendment meaning of that term.” 400 U.S. at 317. The

entry into the home did not in itself invoke the Fourth

Amendment since, with no significant investigative pur-

pose, it involved no violation of privacy rights.

In Cardwell v. Lewis, 417 U.S. 583, 41 L.Ed.2d 325, 94

S.Ct. 2464 (1974), where the police took paint scrapings

from the exterior of the defendant’s impounded automobile,

a plurality of the Court rejected the defendant’s Fourth

Amendment challenge. “Rather than property rights, the

primary object of the Fourth Amendment was determined

to be the protection of privacy.”” 417 U.S. at 589. Without

an intrusion into the car’s interior, no expectation of pri-

vacy was impinged. 417 U.S. at 591.

That the Fourth Amendment protects privacy interests

rather than property interests remains at the core of this

—20—

Court’s decisions. “The central purpose of the Fourth

Amendment is to safeguard the privacy and security of

individuals against arbitrary invasions by government of-

ficials.”” South Dakota v. Opperman, 428 U.S. 364, 377, 49

L.Ed.2d 1000, 1009-10, 96 S.Ct. 3092, 3101 (1976) (Powell,

J., concurring). The Fourth Amendment “protects people

from unreasonable government intrusions into their legit-

imate expectations of privacy.” United States v. Chadwick,

433 U.S. 1, 7, 53 L.Ed. 538, 546, 97 S.Ct. 2476, 2481

(1977). “The Fourth Amendment protects legitimate ex-

pectations of privacy rather than simply places.”” ///inois

v. Andreas, 463 U.S. 765, 771, 77 L.Ed.2d 1003, 1010, 103

S.Ct. 3319, 3324 (1983).

It is the Fourth Amendment’s protection of privacy,

rather than property rights, that is at the heart of this

Court’s opinions involving the seizure of items in plain

view. Since the Fourth Amendment offers no protection

for what a person knowingly displays to the public, United

States v. Dionisio, 410 U.S. 1, 14, 35 L.Ed.2d 67, 79, 93

S.Ct. 764, 771 (1973), a seizure of property in plain view

is not an invasion of privacy, is presumptively reasonable,

and is not in itself a violation of the Fourth Amendment.

Payton v. New York, 445 U.S. 573, 587, 63 L.Ed.2d 639,

651, 100 S.Ct. 1371, 1380 (1980). The plurality opinion in

Texas v. Brown, 460 U.S. 730, 739, 75 L.Ed.2d 502, 511,

103 S.Ct. 1535, 1541 (1983), stated that the principle sup-

porting the plain-view doctrine is the “recognition that

when a police officer has observed an object in ‘plain-

view,’ the owner’s remaining interests in the object are

merely those of possession and ownership. . . .” The ma-

jority opinion in Illinois v. Andreas, 463 U.S. 765, 771,

77 L.Ed.2d 1003, 1010, 103 S.Ct. 3319, 3324 (1983), pre-

sents the principle even more clearly: “The plain-view doc-

trine is grounded on the proposition that once police are

lawfully in a position to observe an item firsthand, its

~2]—

owner's privacy interest in that item is lost; the owner

may retain the incidents of the title and possession but

not privacy.”

The petitioners’ argument that the Fourth Amendment

protects possessory rights, if understood to mean that

there can be a Fourth Amendment violation where no

privacy right is involved, is simply contrary to this Court’s

decisions. A seizure of property, of course, involves by

definition ‘‘some meaningful interference with an individ-

ual’s possessory interests in that property.” United States

v. Jacobsen, 466 U.S. 109, 113, 80 L.Ed.2d 85, 94, 104

S.Ct. 1652, 1656 (1984). However, no case holds that an

interference with that possessory interest in itself violates

the Fourth Amendment. The police seized the paint scrap-

ings in Cardwell v. Lewis, 417 U.S. 583, 41 L.Ed.2d 325,

94 S.Ct. 2464 (1974), thus intruding on a possessory inter-

est, but committed no Fourth Amendment violation since

no expectation of privacy was impinged. 417 U.S. at 591.

The officer in Texas v. Brown, 460 U.S. 730, 75 L.Ed.2d

502, 103 S.Ct. 1535 (1983) seized the defendant’s balloon

without a Fourth Amendment violation because the owner

had a possessory interest but no privacy interest.

The basis of the Court’s holding in Hudson v. Palmer,

468 U.S. 517, 82 L.Ed.2d 393, 104 S.Ct. 3194 (1984), was

Palmer's lack of privacy rights. The Court phrased the

issue before it as “whether a prison inmate has a reason-

able expectation of privacy in his prison cell entitling him

to the protection of the Fourth Amendment against un-

reasonable searches and seizures.”’ 468 U.S. at 519. Later,

the Court stated the seminal principle of Fourth Amend-

ment protection: “The applicability of the Fourth Amend-

ment turns on whether the person invoking its protection

can claim a ‘justifiable,’ a ‘reasonable,’ or a ‘legitimate

expectation of privacy’ that has been invaded by govern-

ment action.’’ 468 U.S. at 525 (quoting Smith v. Mary-

land, 442 U.S. 735, 740, 61 L.Ed.2d 220, 226, 99 S.Ct.

2577, 2580 (1979)). In United States v. Karo, 468 U.S. 705,

82 L.Ed.2d 530, 104 S.Ct. 3296 (1984), discussing the sig-

nificance of possessory interests in the context of a sei-

zure, the Court said: “The existence of a physical trespass

is only marginally relevant to the question of whether the

Fourth Amendment has been violated, however, for an

actual trespass is neither necessary nor sufficient to estab-

lish a constitutional violation.” 468 U.S. at 712-713. A

purely possessory interest may be relevant in determin-

ing the existence of an expectation of privacy, but that

interest in itself is insufficient to warrant Fourth Amend-

ment protection. Rakas v. Illinois, 439 U.S. 128, 58 L.Ed.

2d 387, 99 S.Ct. 421 (1978).

The petitioners’ reliance on United States v. Place, 462

U.S. 696, 77 L.Ed.2d 110, 103 S.Ct. 2637 (1983), ignores the

entire context of the seizure in the case and the fashion

in which the Court phrased the issue. Involved in Place

was not simply a detention of a piece of luggage, but, as

the Court repeatedly called it, an “investigative detention”

of the property. The luggage was detained so that gov-

ernment agents could determine its contents. Hence, the

Court set out the issue as “whether the Fourth Amend-

ment prohibits law enforcement authorities from tempo-

rarily detaining personal luggage for exposure to a trained

narcotics detection dog on the basis of reasonable suspi-

cion that the luggage contains narcotics.” 462 U.S. at 697-

698. Underlying the entire analysis was the fact that the

purpose of the seizure was to learn the contents of the

luggage. From that starting point, the Court went on to

determine whether the seizure was reasonable. In so do-

ing, the Court noted, in reliance on United States v. Chad-

wick, 433 U.S. 1, 53 L.Ed.2d 538, 97 S.Ct. 2476 (1977),

that the purpose of the Fourth Amendment is to protect

—23—

against intrusions on legitimate expectations of privacy

and that a person has a privacy interest in the contents

of personal luggage. Place, 462 U.S. at 706-707. Taken

in its context, therefore, the Place opinion supports the

premise that the object of the Fourth Amendment is the

protection of privacy. Cardwell v. Lewis, 417 U.S. at 589.

C.

THE FOURTH AMENDMENT IS NOT IMPLICATED BY

THE RELOCATION OF THE PETITIONERS’ MOBILE

HOME SINCE THE PETITIONERS’ GENERAL RIGHT TO

PRIVACY, THE RIGHT TO BE LET ALONE, IS NOT IN

ITSELF THE SUBJECT OF FOURTH AMEN

PROTECTION. _—

Since the Fourth Amendment protects against unreason-

able intrusions upon legitimate expectations of privacy,

the validity of the petitioners’ Fourth Amendment claim

requires the violation of a privacy right. The petitioners -

claim the right violated was their right of seclusion or

solitude, the right to be let alone. (Pet. Br. p. 34) The

opinions of this Court, however, indicate that there is no

“right of seclusion” protected by the privacy concerns of

the Fourth Amendment.

The petitioners are correct to point out the distinction

which Judge Posner has made between the two interests

embraced in the word “privacy.” Posner, Rethinking the

Fourth Amendment, 1981 Sup. Ct. Rev. 49, 51, n. 7 (1981).

Privacy includes the concept of solitude or seclusion, the

right to be left alone without interruption. On the other

hand, privacy involves the idea of secrecy, concealment

of information from others. Posner, The Uncertain Pro-

tection of Privacy by the Supreme Court, 1979 Sup. Ct.

Rev. 173, 174 (1979). If the petitioners’ privacy was vio-

lated in this case, such a violation pertains, as petitioners

allttin

contend, to an encroachment on their seclusion or solitude.

Petitioners do not, and cannot, maintain that the respon-

dents in any way pried into matters intended to be kept

secret.

Privacy in the sense of solitude, that “right to be left

alone” from the intrusion of others, however, is not a

right protected by the Fourth Amendment. Neither Judge

Posner nor this Court has ever maintained that the Fourth

Amendment extends to such a right. Judge Posner’s writ-

ings are consistent with the opinion he rendered below

in this case. While the Judge acknowledged the concept

of privacy as seclusion, he made it clear that the Consti-

tution establishes no general right to be left alone. “There

is no suggestion of such a right in the Constitution. There

are simply particular rights to be free from specific forms

of invasion of privacy.”” Posner, The Uncertain Protection

of Privacy by the Supreme Court, 1979 Sup. Ct. Rev. at

181.

More importantly, this Court has consistently recognized

that what has been called the right to be left alone is

not cognizable under the Fourth Amendment. In Katz v.

United States, 389 U.S. 347, 19 L.Ed.2d 576, 88 S.Ct. 507

(1967), the Court acknowledged a “right to be let alone

by other people,” which it called a “general right to pri-

vacy.”’ 389 U.S. at 350. But that right, the Court said, is

not the subject of the Fourth Amendment. “(T]he Fourth

Amendment cannot be translated into a general constitu-

tional right to privacy.” 389 U.S. at 350. On the contrary,

“the protection of a person’s general right to privacy—

his right to be let alone by other people—is, like the pro-

tection of his property and of his very life, left largely

to the law of the individual States.”” 389 U.S. at 350-351.

(Emphasis in original).

That “general” right to privacy, the right to be left

alone referred to in Katz, is given protection from a num-

—25—

ber of sources depending on the context of the intrusion.

Katz left the protection mainly to state law. The same

view is present in Oliver v. United States, 466 U.S. 170,

80 L.Ed.2d 214, 104 S.Ct. 1735 (1984): “The law of tres-

pass recognizes the interest in possession and control of

one’s property and for that reason permits exclusion of

unwanted intruders.”’ 466 U.S. at 183, n.15. Protection in

some particular cases can arise from the Constitution.

Katz, for example, noted protection at times in the Free-

dom of Association Clause of the First Amendment, the

Third Amendment's prohibition against quartering of sol-

diers in time of peace, and the Fifth Amendment. 389

U.S. at 350, n.5. In other contexts, the Court has seen

protection in the Due Process Clause of the Fifth and

Fourteenth Amendments. Fuentes v. Shevin, 407 U.S. 67,

32 L.Ed.2d 556, 92 S.Ct. 1983 (1972).

In this case, the right to exclude others, for which peti-

tioners claim Fourth Amendment protection, is, as the ma-

jority below concluded, actually a property right. Cases

discussing the right in the context of the Takings Clause

of the Fifth Amendment certainly considered it as such.

In Pruneyard Shopping Center v. Robins, 447 U.S. 74,

82, 64 L.Ed.2d 741, 752, 100 S.Ct. 2035, 2041 (1980), the

Court observed that “one of the essential sticks in the

bundle of property rights is the right to exclude others.”

Similarly, in Loretto v. Teleprompter Manhattan CATV

Corp., 458 U.S. 419, 73 L.Ed.2d 868, 102 S.Ct. 3164 (1982),

the Court treated the power to exclude others as a prop-

erty right and concluded that “property law has long pro-

tected an owner's expectation that he will be relatively

undisturbed at least in the possession of his property.”

458 U.S. at 436.

The current petitioners were disturbed in the posses-

sion of their property. To the extent that their solitude

—~26—

has been infringed, they certainly have a remedy, but not

one that flows from the Fourth Amendment. “It is pri-

vacy that is protected by the Fourth Amendment, not

solitude.” O'Connor v. Ortega, 480 U.S. 709, 730, 94

L.Ed.2d 714, 731, 107 S.Ct. 1492, 1504 (1987) (Scalia, J.,

concurring).

THE ACTION OF ILLEGALLY EVICTING PETITION-

ERS FROM A LEASED MOBILE HOME LOT DID NOT

AMOUNT TO A VIOLATION OF PETITIONERS’ DUE

PROCESS RIGHTS.

The instant action originated in a landlord/tenant dispute

over a leased lot upon which petitioners’ mobile home

rested. Respondents, without properly invoking the pro-

cedural mechanisms of the Illinois Forcible Entry and De-

tainer Act, simply removed petitioners’ mobile home from

their property. In accomplishing the eviction, respondents

removed the skirting from petitidners’ mobile home, dis-

connected the mobile home from the utilities that were

servicing it, unmoored the mobile home, and towed it from

the lot. (Complaint, pars. 11, 31) The mobile home was

subsequently returned to petitioners.

Petitioners brought this 42 U.S.C. § 1983 action, alleg-

ing in the complaint that respondents, inter alia, violated

their rights under the Fourteenth Amendment to the United

States Constitution to substantive and procedural due pro-

cess by “unlawfully evicting [petitioners] and destroying

and damaging their property.” (Complaint, Ct. I, par. 33)

However, before this Honorable Court and the Court of

- Appeals, petitioners disavow any claim to § 1983 relief

based upon a denial of procedural due process. (J.A. 39;

Pet. Br. 39-40) Respondents contend that the illegal evic-

tion here, though subject to a State damage action, was

not a violation of petitioners’ due process rights.

=~ 3

The Due Process Clause of the Fourteenth Amendment

provides, in pertinent part: “{NJor shall any State deprive

any person of life, liberty, or property without due pro-

cess of law.’ This Court has construed the Due Process

Clause to afford three different kinds of constitutional pro-

tection. Although not at issue here, Due Process incorpo-

rates the specific protections defined in the Bill of Rights.

Daniels v. Williams, 474 U.S. 327, 337, 88 L.Ed.2d 662,

672, 106 S.Ct 662, 677 (1986) (Stevens, J., concurring in

judgments). The second and most common guarantee asso-

ciated with Due Process is the guarantee that the govern-

ment will not deprive an individual of life, liberty or prop-

erty without providing appropriate procedural safeguards.

United States v. Salerno, 481 U.S. 739, 746, 95 L.Ed.2d

697, 708, 107 S.Ct. 2095, 2101 (1987). Petitioners, however,

attempt to invoke the third guarantee, the substantive

component of the Due Process Clause, which bars certain

arbitrary, wrongful government action “regardless of the

fairness of the procedures used to implement them.” Zin-

ermon v. Burch, 494 U.S. 113, 125, 108 L.Ed.2d 100, 113,

110 S.Ct. 975, 983 (1990) (citing Daniels v. Williams, 474

U.S. at 331).

A distinguishing factor between the procedural and sub-

stantive guarantees of the Due Process Clause is the tim-

ing of the constitutional violation. If the substantive com-

ponent of the Due Process Clause has been violated, the

constitutional violation is complete as soon as the prohib-

ited action is taken. Without more, an “independent fed-

eral remedy is then authorized by the language and

legislative history of § 1983." Daniels, 474 U.S. at 338

(Stevens, J., concurring in judgments). However, in the

context of procedural due process, the failure of the State

to provide procedural redress or response is the crux of

the constitutional violation. Thus, in many “tort-type”

cases where private property has been damaged, the con-

—~2R—

stitutional violation occurs upon the State’s failure to af-

ford the claimants “adequate State remedies” to seek re-

dress. Id.; see Parratt v. Taylor, 451 U.S. 527, 538, 68

L.Ed.2d 420, 430, 101 S.Ct. 1908, 1914 (1981), overruled

in part, not relevant here, by Daniels v. Williams, 474

U.S. at 330-331.

Petitioners characterize the alleged due process viola-

tion as substantive in nature. In an attempt to convert

what is essentially a procedural due process issue into a

substantive due process issue, petitioners focus solely upon

the damage inflicted upon their property, rather than

viewing the entire sequence of events. Petitioners con-

tend, irrespective of the context in which their property

was damaged, such damage constitutes a violation of their

right to substantive due process. However, since the Loch-

ner era of this Court (Lochner v. New York, 198 U.S. 45,

49 L.Ed. 937, 25 S.Ct. 539 (1905)), narrow circumscrip-

tion of the substantive guarantees afforded by the Due

Process Clause has been the guiding principle. See Fer-

guson v. Skrupa, 372 U.S. 726, 10 L.Ed.2d 93, 88 S.Ct.

1028 (1963).

Substantive due process rights, unlike, e.g., property

rights, are created only by the Constitution. Regents of

University of Michigan v. Ewing, 474 U.S. 214, 229, 88

L.Ed.2d 523, 534, 106 S.Ct. 507, 513-514 (1985) (Powell,

J., concurring). Casting aside the argument that text and

ancient history are against the notion of substantive due

process (see Den v. The Hoboken Land and Improvement

Co., 59 U.S. (18 How.) 272, 276, 15 L.Ed. 372, 374 (1856);

Ewing, 474 U.S. at 225-226; Coniston Corp. v. Village of

Hoffman Estates, 844 F.2d 461, 465 (7th Cir. 1988)), this

Court has “always been reluctant to expand the concept

of substantive due process because guideposts for respon-

sible decisionmaking in this unchartered area are scarce

~29—

and open-ended.” Collins v. Harker Heights, 503 U.S.

E . 117 L.Ed.2d 261, 278, 112 S.Ct. 1061, 106s

(No. 90- 17H February 26, 1992). As Justice White cau.

tioned, “[T}he Court should be extremely reluctant to

breathe still further substantive content into the Due Pro-

cess Clause,” noting that, “Whenever the Judiciary does

so, it unavoidably pre-empts for itself another part of the

governance of the country without express constitutional

authority.”” Moore v. City of East Cleveland, 431 U.S. 494,

544, 52 L.Ed.2d 581, 565, 97 S.Ct. 1982, 1959 (1977) (White,

J., dissenting).

Proceeding with caution and restraint, the Court has

reserved substantive due process protections for certain,

specified areas of individual civil liberties that lie at the

heart of a free society. The substantive component of the

Due Process Clause protects only those interests that are

“deeply rooted in this Nation's history and tradition.”

Griswold v. Connecticut, 381 U.S. 479, 501, 14 L.Ed.2d

O10, 548, 85 S.Ct. 1678, 1691 (1965) (Harlan, J., concur

ring); Moore, 431 U.S. at 508. The Court has invoked

substantive due process when government action inter

feres with rights “implicit in the concept of ordered lib:

erty” such that “neither liberty nor justice would exist if

|they| were sacrificed.” Palko v. Connecticut, 302 U.S. 319.

$25, 82 L.Ed. 288, 292, 58 S.Ct. 149, 152 (1937). Stated

another way, substantive due process protects against

government action that “offends some principle of justice

so rooted in the traditions and conscience of our people

aus to be ranked as fundamental."’ Snyder v. Massachu-

setts, 291 U.S. 97, 105, 78 L.Ed. 674, 677, 54 S.Ct. 330,

332 (1934).

The Court has invoked the aid of substantive due process

when a State has attempted to impermissibly “deprive”

its citizens of their freedom of choice within the private

realm of marriage, family life or procreation. This Court

—30—

found such “deprivations” violative of the substantive due

process clause, irrespective of the procedural mechanisms

afforded by the State. See, e.g., Meyer v. Nebraska, 262

U.S. 390, 67 L.Ed. 1042, 43 S.Ct. 625 (1923); Pierce v.

Society of Sisters, 268 U.S. 510, 69 L.Ed. 1070, 45 S.Ct.

571 (1925); Poe v. Ullman, 367 U.S. 497, 6 L.Ed.2d 989,

81 S.Ct. 1752 (1961); Griswold v. Connecticut, 381 U.S.

479, 14 L.Ed.2d 510, 85 S.Ct. 1678 (1965); Loving v. Vir-

ginia, 388 U.S. 1, 18 L.Ed.2d 1010, 87 S.Ct. 1817 (1967);

Eisenstadt v. Baird, 405 U.S. 438, 31 L.Ed.2d 349, 92

S.Ct. 1029 (1972); Roe v. Wade, 410 U.S. 113, 35 L.Ed.2d

147, 93 S.Ct. 705 (1973); and Moore v. City of East Cleve-

land, 431 U.S. 494, 52 L.Ed.2d 531, 97 S.Ct. 1932 (1977).

With all due respect, petitioners’ right to be free from

an illegal eviction, as compared to a legal eviction, is not

one of the “fundamental” interests to which this Court

has been willing to extend the heightened constitutional

protection of substantive due process. See Moore, 431 U.S.

at 537 (Stewart, J., dissenting); Harrah Independent School

Ihstrict v. Martin, 440 U.S. 194, 198, 59 L.Ed.2d 248, 254,

99 S.Ct. 1062, 1064 (1979); Ewing, 474 U.S. at 229-230

(Powell, J., concurring).

In an attempt to invoke the “shock the conscience” stan-

dard carefully delineated by this Court in Rochin v. Cali-

fornia, 342 U.S. 165, 96 L.Ed.183, 72 S.Ct. 205 (1952) (see

also 25 A.L.R. 2d 1396 (1952)), petitioners, in their brief,

characterize respondents’ actions as violative of their “fun-

damental right to their home.” (Pet. Br. 50) Petitioners’

mobile home was damaged during the illegal eviction. But,

it is important to keep in mind that, even in a legal evic-

tion involving a mobile home, disconnecting the utilities

and “unmooring”’ the structure would be necessary. Again,

with all due respect to petitioners, the incidental proper-

ty damage that they sustained as the result of an illegal

eviction is hardly the type of governmental conduct that

—3l—

“offend[s] even the hardened sensibilities”, that is “‘so of-

fensive to human dignity” or that “shocks the conscience”

of this Court so as to warrant protection under the sub-

stantive component of the Due Process Clause.

The crux of petitioners’ claim is their illegal eviction

from the mobile home park. The State of Illinois enacted

the Forcible Entry and Detainer Act to provide its resi-

dents the complete remedy at law for settling disputes

over possession of real property. People v. Evans, 163 Il.

App. 3d 561, 564, 516 N.E.2d 817, 819 (1987); Ill. Rev.

Stat. 1987, ch. 110, par. 9-101 et seg. In derogation of the

common law, this Act prohibits resolution of landlord/ten-

ant disputes through forcible self help. City of Chicago

v. Steamship Lines, 328 Ill. 309, 312, 159 N.E. 301, 303

(1927); Doty v. Burdick, 83 Ill. 473, 477 (1876).

The State of Illinois has chosen to channel landlord/tenant

disputes through the judicial process, thereby affording

the parties notice and a “right to be heard” prior to dis-

possession. The Forcible Entry and Detainer Act is the

procedural mechanism whereby the State of Illinois

“minimize[s] substantively unfair or mistaken deprivations

or property.” Fuentes v. Shevin, 407 U.S. 67, 80-81, 32

L.Ed.2d 556, 570, 92 S.Ct. 1983, 1994 (1972). As the facts

of this case bear out, petitioners were “mistakenly de-

prived of their property” by the actions of respondents,

and a state court action for damages should follow.

Petitioners’ characterization notwithstanding, the Seventh

Circuit Court of Appeals properly recognized that the facts

of the instant cause necessitate resolution under the pro-

cedural component of the Due Process Clause. (J.A. 38-40)

* See Graham v. Connor, 490 U.S. 386, 104 L.Ed.2d 443, 109 S.

Ct. 1865 (1989). Although the cause there was pled and decided

in the lower courts on substantive due process grounds, this Court

evaluated the claim on Fourth Amendment grounds.

alin

Petitioners were entitled to procedural due process: notice

and an opportunity to be heard prior to being evicted

from the mobile home park. However, it appears from

the evidence that the eviction was accomplished through

the “random and unauthorized”’ action by respondents.

Petitioners have a cause of action for damages, but not one

under the Civil Rights Act for a violation of the Fourth

and Fourteenth Amendments.

The facts of this case fall squarely within the confines

of Parratt v. Taylor, 451 U.S. 527, 68 L.Ed.2d 420, 101

S.Ct. 1908 (1981), overruled in part, not relevant here, by

Daniels v. Williams, 474 U.S. at 330-331, and Hudson v.

Palmer, 468 U.S. 517, 82 L.Ed.2d 393, 104 S.Ct. 3194

(1984) (extending rationale of Parratt to intentional depri-

vations of property). In Parratt, a state prisoner brought

a § 1983 action against prison officials, alleging that their

negligent loss of his mail-order hobby kit “deprived [him]

of his property and Due Process of Law.” Parratt, 451

U.S. at 536. Analyzing Parratt’s claim under procedural

due process, this Court reasoned that, where the “tortious

loss” of his property was the “result of a random and

unauthorized act by a state employee, * * * the loss is

not a result of some established state procedure and the

State cannot predict precisely when the loss will occur.”

Id. at 541. The Court found that, under these circum-

stances, “the existence of an adequate state remedy to

redress property damage inflicted by state officers” pro-

vides all the process that is due. /d. at 542-544.

In the instant cause, petitioners were clearly not deprived

of their property as the result of an established state pro-

cedure or pdlicy. Rather, when circumventing the Illinois

Forcible Entry and Detainer Act, the only evidence is that

respondents acted in a “random and unauthorized” man-

—33—

ner.* However, petitioners were not deprived of due pro-

cess of law because the laws of the State of Illinois afford

them post-deprivation redress for their property damage.

Petitioners are clearly entitled to bring a state tort claim

against respondents to recover damages for the incidental

property damage they sustained. (See, e.g., Rosenthal v.

City of Crystal Lake, 171 Ill. App. 3d 428, 525 N.E.2d

1176 (2d Dist. 1988) (trespass))® Petitioners do not contend

that these state court remedies are inadequate to compen-

sate them for the property damage incurred. Moreover,

petitioners have in fact already sought and been afforded

some redress for the illegal eviction (petitioners’ mobile

home was reinstated in the mobile home park pursuant

to court order). (See Complaint, pars. 19, 20; J.A. 7-8, 30)

Therefore, due to the adequate state remedies available

and granted to petitioners through state procedures, peti-

tioners were not deprived of procedural due process.

For the reasons set forth above, respondents respect-

fully request this Court affirm the decision of the courts

below, finding there to be, as a matter of law, no viola-

tions of the Due Process Clause.

* A conspiracy may in fact be a random act if, “from the point

of view of the state{,] * * * the state cannot anticipate or control

such conduct in advance."’ Easter House v. Felder, 910 F.2d 1387.

1399 (7th Cir. 1990), cert. denied, U.S. ____ (1991) citing Hol-

loway v. Walker, 790 F.2d 1170, 1172 (5th Cir. 1986), cert. ied,

479 U.S. 984 (1986). See also National Communications v. Mich-

; se Public Service, 789 F.2d 370, 372-373 (6th Cir. 1986), cert.

enied, 479 U.S. 852 (1986).

® Although the state remedies may not provide all the relief

which may have been available under a § 1983 claim (e.g., at-

torneys’ fees), the requirements of the due process clause are

satisfied if the post-deprivation remedy compensates for the prop-

erty damage. Parratt v. Taylor, 451 U.S. 527, 543-544, 68 L.Ed.2d

420, 434, 101 S.Ct. 1908, 1917 (1981).

nities

IV.

PETITIONERS, WHOSE PROPERTY HAS BEEN DAM-

AGED AS THE INCIDENTAL RESULT OF AN ILLEGAL

EVICTION, SHOULD NOT BE AFFORDED A 42 U.S.C.

§ 1983 CAUSE OF ACTION.

Petitioners assert that the Court of Appeals found, be-

cause “petitioners were really bringing a due process claim,”

the existence of adequate state remedies foreclosed relief

on their Fourth Amendment claim. (Pet. Br. 37-46) The

Court of Appeals, however, explicitly noted that the ex-

istence of state remedies has no bearing on whether a

Fourth Amendment claim is actionable. (J.A. 41) As stated

above, the Court of Appeals properly analyzed petitioners’

Fourth Amendment claim and found that it must fail be-

cause no Fourth Amendment violation occurred.

The majority of the Court of Appeals stated:

The existence of adequate legal remedies for an il-

legal eviction such as occurred here—state remedies

if they are uate, a federal remedy under the due

process clause if not—is pertinent to deciding whether

the Fourth Amendment should be bent to provide

the Soldals with still another remedy. Bent it would

have to be, because the amendment was never in-

tended to regulate garden-variety commercial dis-

putes of the sort involved in this case. Why bend,

when the Soldals had adequate alternatives? (J.A. 56)

The above quoted portion merely evinces the Court of

Appeals’ recognition that there is an interplay between

constitutional interpretation and our federalist system of

government. As Judge Easterbrook made clear in his con-

currence:

Dragooning [a claim such as petitioners’) into federal

court under the aegis of 42 U.S.C. § 1983 is lexicaily

possible, for the fourth amendment is written broadly.

* * * As the fourth amendment bars unreasonable

- =

action, a reading taking [privacy and property] inter-

ests to the limits transfers to the federal judiciary

the power to decide whether every public action is

reasonable. What is left for the rest of the Constitu-

tion—or for state law and democratic choice? (J.A.

68-69, Easterbrook, J., concurring).

The Civil Rights Act, 42 U.S.C. § 1983 prohibits con-

duct: (1) by a person acting under color of state law; (2)

which deprives a person of the rights, privileges, or immu-

nities secured by the Constitution or laws of the United

States. Parratt v. Taylor, 451 U.S. 527, 535, 68 L.Ed.2d

420, 428, 101 S.Ct. 1908, 1913 (1981). An overly broad con-

struction of § 1983 and the constitutional provision invoked

may well permit litigants to use the federal courts to com-

pletely subsume areas of regulation traditionally left to

the individual States and their democratic processes.

Section 1983 was originally enacted by Congress in 1871

to enforce the provisions of the Fourteenth Amendment

against the States. Monroe v. Pape, 365 U.S. 167, 171,

5 L.Ed.2d 492, 496, 81 S.Ct. 473, 475 (1961), overruled

in part, not relevant here, by Monell v. New York Depart-

ment of Social Services, 436 U.S. 658, 56 L.Ed.2d 611,

98 S.Ct. 2018 (1978). Enacted against the backdrop of ram-

pant Ku Klux Klan activity, § 1983 sought to accomplish

three main aims: (1) to override certain kinds of state

laws, (2) to provide a remedy where state law was inade-

quate and (3) to provide a federal remedy where the state

remedy, though adequate in theory, was not available in

practice. Monroe, 365 U.S. at 173-174. Essentially, § 1983

was enacted to provide:

* * * a federal right in federal courts because, by

reason of prejudice, passion, neglect, intolerance or

otherwise, state laws might not be enforced and the

claims of citizens to the enjoyment of rights, privi-

leges, and immunities guaranteed by the Fourteenth

—36—

Amendment might be denied by the state agencies.

Monroe, 365 U.S. at 180.

The instant cause does not present the type of situation

that needs to be redressed pursuant to § 1983. Random

misjudgment or misbehavior on the part of lower echelon

state employees should not be regulated by the federal

government under the guise of § 1983.

Justice Frankfurter, dissenting from the majority deci-

sion in Monroe v. Pape, warned against expansive inter-

pretation of § 1983:

[Since it is projected into the future, it is ambulatory

in scope, the statute properly absorbing the expand-

ing reach of its purpose to the extent that the words

with which that purpose is conveyed fairly bear such

expansion. But this admissible expansion of meaning

through the judicial process does not entirely unbind

the courts and license their exercise of what is quali-

tatively a different thing, namely, the formulation of

policy through legislation. Monroe, 365 U.S. at 244

(Frankfurter, J., dissenting).

Petitioners ask this Court to do exactly what Justice Frank-

furter feared. Here, by a fortuity of the deputy sheriffs’

mere presence, petitioners seek § 1983 redress from the

federal court system for what was essentially a garden

variety landlord/tenant dispute. As this Court has often-

times recognized, property interests “are created and their

dimensions are defined by existing rules or understandings

that stem from * * * state law.” Board of Regents of State

Colleges v. Roth, 408 U.S. 564, 577, 33 L.Ed.2d 548, 561,

92 S.Ct. 2701, 2709 (1972). Regulation of, and redress for,

landlord/tenant disputes is an area that is peculiarly within

the jurisdiction of the various States.

Petitioners challenge neither the usefulness nor the pro-

priety of Illinois’ Forcible Entry and Detainer Act, nor

—37—

its state remedies available to recompense petitioners for

the property damage that they have suffered. Rather, they

challenge the aberrant misconduct of lower echelon state

officers. There is a crucial distinction between a challenge

to an established state procedure and a property damage

claim arising out of the misjudgment or misconduct of low

level officers. In the latter situation, although the “under

color of law” requirement may be literally satisfied, the

“State action” required by the Fourteenth Amendment

is not complete unless, and until, the State is unable to

make the aggrieved individual whole for the damages he

incurred at the hands of the state officers. Bonner v.

Coughlin, 517 F.2d 1311, 1319 (7th Cir. 1975), modified

en tae 545 F.2d 565 (1976), cert. denied, 485 U.S. 932

(1978).

Under the instant set of facts, providing petitioner re-

dress through the Federal Constitution would not serve

any of the three aims for which § 1983 was enacted. This

is what the Court of Appeals meant when it stated:

Literally there was a “seizure” here, but to use

a literal interpretation of a constitutional provision

** * would trivialize the amendment and gratuitously

shift a large body of routine commercial litigation

from the state courts to the federal courts. (J.A.58-59)

Divorcing the Federal Constitution and § 1983 from the

notion of federalism, which is exactly what this Court

would have to do to provide petitioners § 1983 redress,

could begin the process of eventually subsuming an area

of regulation traditionally and properly regulated by the

individual States. This Court has often warned against

reading the Constitution and § 1983 so as to create “a

font of tort law to be superimposed upon whatever sys-

tems may already be administered by the States.” Pau/

v. Davis, 424 U.S. 698, 701, 47 L.Ed.2d 405, 413, 96 S.Ct.

1155, 1160 (1976),

—38—

In the instant cause, through a unique factual situation,

petitioners have attempted to fashion a § 1983 cause of

action. However, petitioners should not be afforded § 1983

redress for what is essentially a landlord/tenant dispute

with incidental property damage. Section 1983 was not

designed to “federalize”’ state tort claims. As this Court

has recognized:

Our Constitution deals with the large concerns of the

governors and the governed, but it does not purport

to supplant traditional tort law in laying down rules

of conduct to te liability for injuries that at-

tend living together in society. Daniels v. Williams,

474 U.S. 327, 332, 88 L.Ed.2d 662, 669, 106 S.Ct. 662,

665 (1986).

Through the democratic process, Illinois has fashioned a

system of regulating “liability for injuries that attend living

together in society.” The Illinois Forcible Entry and De-

tainer Act, in conjunction with the tort claims mechanism,

affords petitioners complete redress for the “random and

unauthorized” property damage they have suffered at the

hands of low level state employees. “Federalizing’’ the

instant cause, through § 1983, could prove to be a very

extensive. and expensive remedy.

—239—

CONCLUSION

—_ Ol

Respondents respectfully request that this Court affirm

the decision of the United States Court of Appeals for

the Seventh Circuit, which affirmed the District Court's

order granting respondents’ motion for summary judgment.

Respectfully submitted,

JACK O'MALLEY

State’s Attorney

Cook County, Illinois

KENNETH L. GILLIS

Counsel of Record

First Assistant State’s Attorney

309 Richard J. Daley Center

Chicago, Illinois 60602

(312) 443-5496

RENEE G. GOLDFARB

KENNETH T. McCURRY

RANDOLPH M. JOHNSTON

SUSAN R. SCHIERL

Assistant State’s Attorneys

Attorneys for Respondents