Amicus Curiae Brief — Soldal v. Cook County

OcTroper TERM, 1991

EDWARD SOLDAL, et al.,

a Petitioners,

COUNTY OF COOK, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

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BEST AVAILABLE CO

QUESTIONS PRESENTED

Amici curiae will address the following questions:

1. Whether the County police officers acted reasonably

within the meaning of the Fourth Amendment during the

seizure of petitioners’ mobile home.

2. Whether the County police officers violated petition-

ers’ Fourteenth Amendment right to substantive due

process.

(i)

TABLE OF CONTENTS

QUESTIONS PRESENTED .....w.. oo... iasasies ‘i

TABLE OF AUTHORITIES ...............o.... paiaiaiet

INTEREST OF THE AMICI CURIAE

SEE seveeadaetin

ARGUMENT ....... Salt iiaiuiatadibabecesintioenssones

I,

Il.

RESPONDENTS’ CONDUCT DURING THE

SEIZURE WAS REASONABLE WITHIN

THE MEANING OF THE FOURTH AMEND-

NEE

A. The Fourth Amendment Decent

Standard Balances Government And Individ-

ual Interests .......... Ot

B. The Police Conduct Was Reasonable ..... ae

RESPONDENTS DID NOT VIOLATE PETI-

TIONERS’ RIGHT TO SUBSTANTIVE DUE

EEE

‘A. This Case Raises Only A Procedural Due

Process Claim That Should Be Dismissed

Under Parratt v. Taylor And Hudson vy.

Palmer ............ DE

B. The Damage Alleged Did Not “Shock The

Conscience,” Nor Did It Deprive Petitioners

Of A Fundamental Right 0000000000...

1. The Damage To The Trailer Did Not

“Shock The Conscience”...

2. The Damage To The Trailer And Tem-

porary Deprivation Of Its Use Did Not

Deprive Petitioners Of A Fundamental

CONCLUSION .......................

12

18

15

17

18

_ v

iv

TABLE OF AUTHORITIES TABLE OF AUTHORITIES—Continued

CASES Page Page

Archuleta Vv. Colorado Dep't of Inats., 986 F.2d 483 United States v. Coleman, 628 F.2d 961 (6th Cir.

(10th Cir. 1991) . a ae, 1980) _......... 8

Ariola v. Nigro, 156 N.E.2d 536 (Ill. 1959)... 12, 14 Weimer ¥. Amen, 870 F.2d 1400 (8th Cir, 1989) . 14

Brower Vv. County of Inyo, 489 U.S. 593 (1989). 6, 8 |

Bueter V. Krzystowezyk, 93 N.E.2d 428 (Ill. App. STATUTES

Ct. 1950) _. a eee aol 12 Ill. Rev. Stat. ch. 110, para. 9-102 and 9-103

Collins v. City of Harker Heights, 112 S. Ct. 1061 | Ce sonesdatsennee acme 12

ct ae 15, 17 OTHER AUTHORITIES

Daniels v. Williams, 474 U.S. 327 (1986) - _ 17,19 ae :

Griffin Vv. Wisconsin, 483 U.S. 868 (1987) . 9 James Q. Wilson, Varieties of Police Behavior: The

Howerton V. Gabica, 708 F.2d 380 (9th Cir. 1983) + Management of Law and Order in Eight Com-

Hudson v. Palmer, 468 U.S. 517 (1984) _.......... passim munities (1968) eect 10

Kauth v. Hartford Ins. Co., 852 F.2d 951 (7th Cir.

1988)... 14, 16

Lum V. Jensen, 876 F.2d 1385 (9th Cir. 1989), ‘cert.

denied, 493 U.S. 1057 (1990) 00 14, 16

Menchaca v. Chrysler Credit Corp., 613 F.2d 507

(5th Cir.), cert. denied, 449 U.S. 953 (1980) . ~

Michael H. v. Gerald D., 491 U.S. 110 (1989) 18, 19

Midnight Sessions, Ltd. v. City of Philadelphia, 945

F.2d 667 (3d Cir. 1991), cert. denied, 112 S. Ct.

1668 (1992)... es

National Treasury Employees’ Union v. Von Raab,

489 U.S. 656 (1989)... ciate 9

New Jersey V. T.L.O., 469 U.S. 325 (1985) . _..... passim

New York v. Burger, 482 U.S. 691 (1987) 9

O'Connor V. Ortega, 480 U.S. 709 (1987) ae 8-9

Palko v. Connecticut, 302 U.S. 319 (1937) _ 17,18 °

Parratt Vv. Taylor, 451 U.S. 527 (1981)... passim :

Paul Vv. Davis, 424 U.S. 693 (1976) .. aa

Regents of Univ. v. Ewing, 474 US. 214 (1985) ' 16

Rochin Vv. California, 342 U.S. 165 (1951)... 17, 18

Santiago de Castro v. Morales Medina, 943 F.2d

I 14

Skinner v. Railway Labor Executives’ Ass'n, 489

U.S. 602 (1989) .. i: ae

Snyder v. Massachusetts, 291 US. 97 ( 1933) . ici 17

Spence Vv. Zimmerman, 873 F.2d 256 (11th Cir.

a eee 14, 16

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

No. 91-6516

EDWARD SOLDAL, et al.,

Petitioners,

Vv.

COUNTY OF CooK, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

BRIEF OF THE

NATIONAL LEAGUE OF CITIES,

INTERNATIONAL CITY/COUNTY

MANAGEMENT ASSOCIATION,

NATIONAL INSTITUTE OF MUNICIPAL

LAW OFFICERS,

NATIONAL GOVERNORS’ ASSOCIATION,

NATIONAL ASSOCIATION OF COUNTIES, AND

U.S. CONFERENCE OF MAYORS

AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

INTEREST OF THE AMICI CURIAE

Amici, organizations whose members include state,

county, and municipal governments and officials through-

out the United States, have a compelling interest in legal

issues that affect state and local governments. The ques-

tions presented in this case will have a substantial im-

pact on the scope of federal damages actions under 42

U.S.C. § 1983 for claims arising out of evictions and re-

possessions at which police officers are present. Amici

submit that even if the Fourth Amendment applies to

private evictions and repossessions, respondents’ actions

were reasonable under the circumstances presented here.

Petitioners additionally seek to transform state law

torts and procedural due process issues into substantive

due process violations, thereby evading the strictures of

Parratt v. Taylor, 451 U.S. 527 (1981). Amici believe

that this case presents an important opportunity for the

Court further to clarify the application of Parratt to

random and unauthorized acts that can be remedied

through adequate state postdeprivation procedures. Be-

cause this Court’s decision will have a direct impact on

matters of importance to amici and their members,

amici submit this brief to assist the Court in its resolu-

tion of the case."

STATEMENT

Amici adopt respondents’ statement of the case and also

rely upon the factual findings of the district court and

the court of appeals. Amici emphasize the following facts

of importance to their arguments.

On September 4, 1987, the Cook County Sheriff's Police

Department was contacted by the owner of Willoway Ter-

race, a mobile home trailer park. The park owners re-

quested the presence of a police officer because they

feared that a disturbance might occur while their em-

ployees moved a trailer. Captain Jackson assigned Lieu-

tenant Jones and Deputy Sheriff O'Neill to “stand by and

maintain the peace” during the move. District Ct. Mem.

Op. at 2-3. Upon arrival at Lot 24 of Willoway Terrace,

Officer O'Neill remained in his squad car while Willoway

Terrace workers began preparations to move the trailer.

Petitioner Edward Soldal came out of his trailer while

the Willoway Terrace employees were preparing to

move it and Soldal questioned them regarding their ac-

' Pursuant to Rule 36 of the Rules of this Court, the parties have

consented to the filing of this brief. Their letters of consent have

been filed with the Clerk of the Court.

tions, After being told by the employees to ask the

“sheriff deputy,” Soldal approached Officer O'Neill and

asked him, “What are you going to do about this?” Offi-

cer O'Neill responded that “he .. . was there to see that

{I} didn’t interfere with |Willoway’s] workers.” 923

F.2d at 1244,

At approximately the same time that the Willoway Ter-

race employees were preparing to move the trailer, Lieu-

tenant Jones went to the Willoway Terrace office. At the

office, Lieutenant Jones spoke with Margaret Hale, the

manager of Willoway Terrace, who led Jones to believe

that she had court approval for the eviction. Because she

was unable to produce any court documentation, however,

Lieutenant Jones called Captain Jackson and asked him

to check the status of the lawsuit. Captain Jackson dis-

covered that there was a case pending and that the par-

ties were scheduled to appear in court on September 22,

1987. Lieutenant Jones then told Hale that without an

eviction notice, the police could not intervene in this civil

dispute. At this point, Willoway employees were already

preparing to move the trailer off Lot 24. District Ct.

Mem. Op. at 3.

When Soldal attempted to file a complaint for criminal

trespass with Lieutenant Jones, Jones informed Soldal

that Jones first needed to speak with a district attorney

in order to determine whether Willoway’s actions violated

the law or whether the actions were a private matter

between landlord and tenant. Assistant State’s Attorney

Dana Crowley advised Lieutenant Jones that in his opin-

ion, the elements of criminal trespass were not present.

As_a result, Lieutenant Jones explained to Soldal that he

could not take his complaint. /d. at 4.

Willoway Terrace employees moved the trailer off Lot

24. In the move, the skirting and canopy which attached

the trailer to the lot were damaged. The sewer and

water fixtures were also disengaged in order to move

the trailer. Willoway Terrace management intended to

4

deposit the trailer on the shoulder of a local intersection.

When Lieutenant Jones discovered this, however, he ex-

plained that it would not be permitted. As a result, the

park owners made arrangements to store the trailer on

private property next door. /d. Additionally, Lieutenant

Jones made certain that the Soldal family had a place to

stay. Arrangements were made for the Soldals to stay

at a local motel for four nights at Willoway Terrace’s

expense. /d. at 5,

SUMMARY OF ARGUMENT

Petitioners seek to transform an eviction—a civil dis-

pute governed by state law—into a federal constitutional

case because police officers were present to maintain or-

der while petitioners were evicted. Without invoking any

state law remedies, petitioners filed a complaint under

42 US.C. $1983, claiming that the respondent police

officers violated petitioners’ right to be free from unrea-

sonable seizures under the Fourth Amendment and their

right to substantive due process under the Fourteenth

Amendment. As the court below recognized, neither

theory is available to petitioners.

The court of appeals correctly held that the Fourth

Amendment does not apply to this case. The rationale

for that holding is fully stated by both the lower court

and Cook County. This brief assumes that there was a

“seizure” of property within the meaning of the Fourth

Amendment and presents the alternative argument that

the judgment below should nonetheless be affirmed because

the conduct of the police was reasonable within the mean-

ing of the Fourth Amendment.

Section 1983 imposes liability for a Fourth Amendment

seizure only if the seizure is unreasonable. While in

many circumstances reasonableness requires the -issu-

5

ance of a warrant based upon probable cause, that stand-

ard is inapplicable when the police are present to keep

the peace during evictions and self-help repossessions. In

these contexts the courts should balance the “government’s

need for effective methods to deal with breaches of public

order” against “the individual’s legitimate expectations

of privacy and personal security.” New Jersey v. T.L.O.,

469 U.S. 325, 337 (1985). Such a balancing test gives

proper weight to the public interest in keeping the peace

during evictions and repossessions—common occurrences

that are-inherently likely to involve emotional confron-

tations that might otherwise result in violence. Because

respondents’ conduct in keeping the peace was reasonable,

and did not permanently deprive petitioners of use of

their property or involve any independent intrusion into

their privacy, respondents should not be subject to lia-

bility under Section 1983 for any violation of petitioners’

Fourth Amendment rights.

II.

The Due Process Clause does not impose liability for

intentional deprivations of property as long as state law

provides adequate postdeprivation procedures. Petition-

ers’ failure to avail themselves of these remedies should

result in dismissal of their substantive due process claim.

The rule of Parratt v. Taylor, 451 U.S. 527 (1981).

would be significantly undermined if claimants were al-

lowed to escape the effect of that rule merely by stating

their claim in terms of “substantive,” rather than pro-

cedural, due process. Indeed, under petitioners’ logic,

the destruction of property in Hudson v. Palmer, 468

U.S. 517 (1984), should be actionable, as a matter of

substantive due process, regardless of available state

remedies.

In addition, petitioners’ allegations do not violate sub-

stantive due process as it has been defined by this Court.

If minor damage to petitioners’ mobile home during an

6

eviction is considered a constitutional violation that

“shocks the conscience” or the deprivation of a “funda-

mental right,” the protection of the Fourteenth Amend-

ment will be improperly diluted. Every wrongful eviction

and repossession necessarily results in some deprivation

of property. Yet under petitioners’ due process theory,

any wrongful eviction or repossession in which police

officers are present would give rise to a constitutional

claim. Petitioners would have the Fourteenth Amend-

ment become a “font of tort law,” Paul v. Davis, 424

U.S. 693, 701 (1976), a result flatly inconsistent with

this Court’s decisions.

ARGUMENT

I. RESPONDENTS’ CONDUCT DURING THE SEI-

ZURE WAS REASONABLE WITHIN THE MEAN-

ING OF THE FOURTH AMENDMENT.

The court of appeals held correctly that the removal

of petitioners’ mobile home was not a “seizure” under the

Fourth Amendment. The en banc opinion of the Seventh

Circuit and the brief of respondents fully address that

issue and their reasoning need not be repeated here.

Equally important, the police action in this case was rea-

sonable. Thus, even if it is assumed that the removal of

the trailer constituted a seizure under the Fourth Amend-

ment, that seizure meets the standards of reasonableness

embodied in the Fourth Amendment as it has been inter-

preted by this Court.

The Fourth Amendment declares that “[t]he right of

the people to be secure in their . . . houses... against

unreasonable searches and seizures shall not be violated.”

As the language of the Amendment makes plain, “ ‘[s]ei-

zure’ alone is not ¢nough for § 1983 liability; the seizure

must be ‘unreasonable.’” Brower v. County of Inyo, 489

U.S. 593, 599 (1989).

Despite the practical importance of the question, the

Court has not identified the specific standard of reason-

7

ableness which governs police protection of the peace

during evictions and repossessions. It has recognized,

however, that as a general matter “what is reasonable

depends on the context within which a search [or seizure]

takes place.” New Jersey v. T.L.O., 469 U.S. at 337. In

many contexts reasonableness requires the issuance of a

warrant based upon probable cause prior to a seizure. See

Skinner v. Railway Labor Executives’ Ass’n, 489 U.S.

602, 619 (1989). In cases like this, however, where the

warrant requirement is unworkable, the test for reason-

ableness balances the “government’s need for effective

methods to deal with breaches of public order” against

“the individual’s legitimate expectations of privacy and

personal security.” 7.L.0., 469 U.S. at 387.

This balancing test accords with the unusual circum-

stances of this case in which the facts do not fit easily into

~ traditional Fourth Amendment categories. Private par-

ties undertook the removal of the trailer. The Cook

County sheriffs’ deputies were present at Willoway Ter-

race for the purpose of protecting the peace and main-

taining order in the midst of a potentially explosive land-

lord-tenant dispute. They were not conducting an investi-

gation. The trailer was not seized as evidence of any

crime, nor was it ever searched. Dist. Ct. Mem. Op. at

4-5. A private landlord-tenant dispute was assertedly

transformed into a constitutional violation by the allega-

tion of a conspiracy—assumed to be true by the court of

appeals, see 742 F.2d at 1075—which led to a finding of

state action. /d.* In other words, the Fourth Amendment

* Even if the Court were to hold that the Fourth Amendment

applies here and that the police conduct was “unreasonable,” there

would remain the jurisdictional issue of whether there is “state

action.” Petitioners’ conspiracy allegation obviously was intended

to satisfy that requirement.

Amici do not concede that there was state action in this case.

Indeed, for many of the reasons set forth in this brief, a special rule

of “state action” may be required in private repossession or eviction

cases in which the police are present to maintain the peace. Other-

claim arises only because of this attribution of a private

removal to the police. Under these circumstances,-police

conduct should be judged by a standard of what is rea-

sonable conduct by officers keeping the peace in a civil

dispute. Because the police conduct in keeping the peace,

even as alleged by petitioners, meets the requirements

of reasonableness under the Fourth Amendment, judg-

ment was properly entered in favor of respondents on

petitioners’ Fourth Amendment claim.

A. The Fourth Amendment Reasonableness Standard

Balances Government And Individual Interests.

At its passage, the Fourth Amendment was envisioned

as a means of circumscribing the general search warrants

which ‘allowed extensive and continuous searches of citi-

zens and their belongings. 7.L.0., 469 U.S. at 335 (citing

United States v. Chadwick, 433 U.S. 1, 7-8 (1977) and

Boyd v. United States, 116 U.S. 616, 624-29 (1886));

Brower, 489 U.S. at 596 (citing Boyd v. United States,

116 U.S. 616, 624-25 (1886) and T. Cooley, Constitu-

tional Limitations 301-02). Since then, the dominant

focus of Fourth Amendment jurisprudence has been on

such investigatory conduct by officials engaged in law

enforcement.

The Court has not limited Fourth Amendment pro--

tection to the criminal context. “|I]t would be ‘anomal-

ous to say that the individual and his private property

are fully protected by the Fourth Amendment only when

the individual is suspected of criminal] behavior.’ ” O’Con-

wise, a mere conspiracy allegation will convert all such cases into

triable constitutional tort claims. Courts of appeals have recognized

that the state action issue in such eviction and repossession cases

must be analyzed with particular concern not to sweep too broadly

and thereby expose government to liability in what are essentially

private disputes. See, ¢.g., Howerton v. Gabica, 708 F.2d 380 (9th

Cir. 1983); United States v. Coleman, 628 F.2d 961 (6th Cir. 1980);

Menchaca vy. Chrysler Credit Corp., 613 F.2d 507 (5th Cir.), cert.

denied, 449 U.S. 953 (1980).

9

nor V. Ortega, 480 U.S. 709, 715 (1987) (citations

omitted’. But the Court has recognized that “|w|hat is

reasonable, of course, ‘depends on all of the circumstances

surrounding the search or seizure and the nature of the

search or seizure itself.’” Skinner, 489 U.S. at 619 (cita-

tions omitted). Although the Fourth Amendment re-

quires, “as a general matter, ... a warrant issued upon

probable cause, .. . neither a warrant nor probable cause,

nor, indeed, any measure of individualized suspicion, is

an indispensable component of reasonableness in every

circumstance.” National Treasury Employees’ Union Vv.

Von Raab, 489 U.S. 656, 665 (1989) (citations omitted) .*

A different Fourth Amendment reasonableness stand-

ard is permitted when the warrant requirement is “un-

workable,” as it clearly is here. See O’Connor, 480 U.S. at

721-22. The Cook County sheriff’s deputies arrived at the

park in order to keep the peace during an eviction. They

were not looking for evidence in a criminal matter. Faced

with private parties engaged in a heated dispute, their

objective was to prevent violence between the parties.

Because the warrant requirement is inapplicable to this

situation, the standard for judging respondents’ conduct

properly involves a balancing of the government and

individual interests involved.

B. The Police Conduct Was Reasonable.

When respondents’ “need for effective methods to deal

with breaches of public order” is balanced against peti-

In the. administrative context, for example, the Court has ac-

knowledged that the requirement of a warrant could interfere with,

or event thwart, compliance with government regulations. New

York v. Burger, 482 U.S. 691 (1987). In the public schools and in

the workplace, the Court has held that school teachers and public

employers would be hindered in their work if their disciplinary

searches of students and employees’ work areas required a warrant

based on probable cause. New Jersey Vv. T.L.0., 469 U.S. 325 (1985);

O'Connor Vv. Ortega, 480 U.S. 709 (1987). In state probation pro-

ceedings, homes of probationers can be searched on less than prob-

able cause. Griffin v. Wisconsin, 483 U.S. 868 (1987).

10

tioners’ “legitimate expectations of privacy and personal

security,” 7.L.0., 469 U.S. at 337, it is clear that the

conduct of the police did not violate the Fourth Amend-

ment. There is a strong public interest in keeping the

peace in commonplace, potentially explosive situations

such as evictions and repossessions. The State has estab-

lished procedures to resolve landlord-tenant disputes and

other creditor-debtor confrontations. When parties resort

to self-help, the task of the police is not to adjudicate the

underlying legal dispute but to prevent the eruption of

violence, thereby protecting both the parties and unin-

volved members of the public.‘

It cannot be enough to create a triable issue under

Section 1983 that the police were present and permitted to

go forward the action that caused petitioners’ home to

be seized temporarily. If liability attaches in these cir-

cumstances, the police are presented with two unaccept-

able choices. Either the police must adjudicate the legal

dispute on the spot, or they must refuse to remain present

for purposes of-maintaining order. The first choice is a

usurpation of the judicial role, and the latter is unthink-

able given the volatility of these kinds of disputes.

Thus, even when the facts are construed in a manner

most favorable to petitioners, the police conduct through-

out the events at the trailer park was reasonably designed

to promote the peace, protect property, and not intrude

*A leading authority has described as follows the role of line

police officers:

The patrolman’s role is defined more by his responsibility for

maintaining order than by his responsibility for enforcing the

law. By “order” is meant behavior that either disturbs or

threatens to disturb the public peace or that involves face-to-face

conflict among two or more persons.

James Q. Wilson, Varieties of Police Behavior: The Management

of Law and Order in Eight Communities 16 (1968), quoted in .

Thomas F. Adams, Law Enforcement: An Introduction to the Police

Role in the Criminal Justice System 145 (1973).

a ve

ll

into petitioners’ privacy. After arriving at the scene of

the dispute, the police acted to ascertain the respective

positions of the parties and to keep the peace. The police

never searched the trailer. The trailer did not remain in

police custody. Instead, the police ensured that the trailer

— be placed in a safe place. Dist. Ct. Mem. Op. at

4-5.

If the Court were to require more of -the police in these

circumstances, then many evictions or repossessions could

give rise to allegations of constitutional violations under

Section 1983. In every situation, police would have to

adjudicate the legal merits of the parties’ positions. The

Fourth Amendment would be implicated in many every-

day disputes. The civil remedies provided by the States

would be undermined.

In this case the substantial public interest in the main-

tenance of the peace during a potentially explosive situa-

tion outweighs any legitimate expectations of security

and privacy subject to Fourth’ Amendment protection

that petitioners may assert. The government's role only

marginally affected petitioners’ interests in security be-

cause the park owner was going to remove the trailer in

any event. The police acted to protect the trailer and

to minimize the harm to the Soldals.* Dist. Ct. Mem. Op.

at 4. Moreover, there is no allegation that the police

entered petitioners’ home or otherwise invaded their

privacy. «

* The court of appeals was concerned that petitioners had been

deprived of their state-created right to exercise limited force to

protect their property. The presence of the police presumably

deterred Soldal from taking matters into his own hands. But the

' state law shield for those who must act to protect their property

(in the absence of police protection) should not be converted into a

sword, State policy certainly does not encourage limited violence;

it merely condones it. The dominant state policy remains to maintain

the peace and the police properly served that interest.

12

Finally, there is no need for a Fourth Amendment rem-

edy in this case. State law provides substantial rights and

remedies for mobile home tenants such as petitioners, in-

cluding remedies under tort law for trespass. See, ¢.y.,

Ariola Vv. Nigro, 156 N.E. 2d 536 ‘Ill. 1959). Petitioners’

interests are also protected under the Illinois Forcible

Entry and Detainer Act. Ill. Rev. Stat. ch. 110, para.

9-102 and 9-103 (1984). See Buetner v. Krzystowczyk,

93 N.E.2d 428, 429 ‘Ill. App. Ct. 1950) (tenants with

actual possession of premises who were wrongfully evicted

can maintain forcible entry and detainer action against

landlord). Appropriate avenues thus existed for petition-

ers to pursue the claim which they incorrectly raise here

under the Fourth Amendment.

In balancing government against individual interests

in this setting of eviction by private parties, then, the

balance of interests favors the government action. The

police role was primarily a neutral one of keeping the

peace; they acted reasonably to protect the “seized” prop-

erty and they did nothing to invade petitioners’ privacy.

In sum, the police conduct, even if viewed as a “seizure,”

was reasonable within the meaning of the Fourth

Amendment.

Il. RESPONDENTS DID NOT VIOLATE PETITION-

ERS’ RIGHT TO SUBSTANTIVE DUE PROCESS.

In Parratt v. Taylor, 451 U.S. 527 (1981) and Hud-

son V. Palmer, 468 U.S. 517 (1984), this Court held that

when a State provides adequate postdeprivation proe-

ess, property damage resulting from a random and un-

au:horized act does not present a procedural due process

claim under 42 U.S.C. § 1983. Perratt, 451 U.S. at 544;

Hudson, 468 U.S. at 533. Petitioners’ case concerns only

procedural due process issues, and as such, it should be

dismissed for failure to invoke state remedies. Even if

petitioners could apply substantive due process analysis

to a property deprivation, however, petitioners’ claim

13

fails to meet this Court's exacting substantive due process

standards. In effect, petitioners attempt to constitutional-

ize a tort claim.

A. This Case Raises Only A Procedural Due Process

Claim That Should Be Dismissed Under Parratt v.

Taylor And Hudson vy. Palmer.

Under Parratt v. Taylor, 451 U.S. 527 (1981), when

a State provides adequate postdeprivation procedures, an

individual suffering a loss of property due to a random

and unauthorized act does not have a claim under Section

1983. Jd. at 544. Parratt is premised on the principle

that government cannot provide predeprivation process

before its officers commit a random and unauthorized

deprivation of procedural due process. See id. at 542-43.

Thus, adequate state postdeprivation remedies are the

only process the State could be expected to provide. Jd. at

541. As long as these procedures exist, the Fourteenth

Amendment is satisfied.

Three years later, in Hudson v. Palmer, this Court

reaffirmed its holding in Parratt and expressly extended

the rule in Prrratt to intentional deprivations of prop-

erty. 468 U.S. at 533. The Court emphasized that

it}he underlying rationale of Parratt is that when

deprivations of property are effected through random

and unauthorized conduct of a state employee, pre-

deprivation procedures are simply ‘

since the state cannot know when such deprivations

will oceur.

Id. se

Consistent with this reasoning, the court of appeals

recognized that the analysis in Parratt retains equal valid-

ity when applied to petitioners’ claim in this case. Ac-

cordingly, the court refused to permit petitioners to evade

the requirements of Parratt v. Taylor merely by claim-

ing that the damage to their trailer was a violation sep-

arate from the wrongful eviction. 923 F.2d at 1249. The

14

damage to petitioners’ trailer cannot be analyzed s€})-

arately from the wrongful eviction, and their claim for

damages therefore cannot comprise a separate .constitu-

tional wrong; it is inseparable from the eviction and is

subject to redress under state law." Thus, petitioners

have no procedura! due process claim because meaningful

postdeprivation remedies were available. Parrett, 451

U.S. at 539."

Extension of petitioners’ argument to its logical con-

clusion would impliedly overrule Hudson, which holds that

even if property has been intentionally damaged, “in-

“ As the court of appeals noted, 923 F.2d at 1248, under Ilinoi«

law petitioners could have sought damages in an action for trespass.

See, ¢.9., Ariola ¥. Nigro, 156 N.E.2d 536 (1. 1959).

* Increasingly, plaintiffs seek to clothe procedural due process

claims in the guise of substantive due process. Ser, «9. Mid-

night. Sessions, Ltd. v. City of Philadelphia, 945 F 2d 667, 682-83

(3d Cir. 1991) (plaintiff claimed that substantive due process was

violated when plaintiff was arbitrarily denied a dance license). cert.

denied, 112 S. Ct. 1668 (1992); Santiago de Castro v. Morales

Medina, 943 F 2d 129, 130 (ist Cir. 1991) (plaintiff claimed that

substantive due process -was violated when plaintiff was fired not-

withstanding her state-created property interest in her job);

Archuleta Vv. Colorado Dep't of Insts, 996 F.2d 483, 488-89 ( Loth

Cir. 1991) (plaintiff claimed that substantive due process was vio-

lated when she was arbitrarily fired in deprivation of a state-

created property right to continued employment); Lum v. Jensen,

876 F.2d 1385, 1387 (9th Cir. 1989) (plaintiff claimed that sub-

stantive due process was violated when he was arbitrarily dis-

charged in violation of his state-created property right to con-

tinued employment), cert. denied, 493 U.S. 1057 (1990) ; Spence v.

Zimmerman, 873 F 2d 256, 258 (11th Cir. 1989) (plaintiff claimed

that substantive due process was violated when he was arbitrarily

denied the state-created property right of an occupancy permit) ;

Weimer V. Amen, 870 F.2d 1400, 1406 (8th Cir. 1989) ( plaintiff

claimed that substantive due process was violated when plaintiff

lost money as a result of the unauthorized action of a state official) -

Kauth v. Hartford Ins. Co. 852 F.2d 951, 956 (7th Cir. 1988)

(plaintiff claimed that substantive due process was violated when

defendant sheriff seized plaintiff's property in violation of state

law).

15

tentional deprivations do not violate [the Due Process

Clause] provided, of covrse, that adequate state post-

deprivation remedies are available.” 4¢8 U.S, at 533. The

respondent in Hudson claimed both procedural and sub-

stantive due process violations. Brief for Respondent and

Cross-Petitioner, //udson v. Palmer at 3-4. Nonetheless,

the Court in //udson ruled that Hudson did not demon-

strate a violation of the procedural requirements of the

Due Process Clause. In a concurring opinion, Justice

O'Connor elaborated upon the majority’s due process

analysis.

The Constitution requires the government, if it de-

prives people of their property, to provide due process

of law and to make just compensation for any tak-

ings. ... Thus, in challenging a property depriva-

tion, the claimant must either avail himself of the

remedies guaranteed by state law or prove that the

available remedies are inadequate.

468 U.S. at 539 (O'Connor, J., concurring). Petitioners’

failure to challenge the adequacy of Illinois’ postdepriva-

tion remedies is thus fatal to their due process claim.

B. The Damage Alleged Did Not “Shock the Con-

(1992) (quoting Daniels v. Williams, 474 U.S. 327, 331

1986)). Because an allegation of lack of procedural due

if

if

16

and bring their due process claim under the auspices of

substantive due process.”

Substantive due process requires the existence of a

right “so rooted in the traditions and conscience of our

* This Court has left open the question of whether, in any cir-

cumstances, a deprivation of property can constitute a deprivation

of substantive due process. Regents of Univ. v. Ewing, 474 U.S. 214,

222-23 (1985). The Ewing Court accepted the parties’ invitation

to assume that the interest in continued enrollment at a state uni-

versity constituted a “ ‘constitutionally protectable property right,’ ”

id. at 22% (quoting Tr. of Oral Arg. 3), and the Court held that

“even if |the| assumed property interest gave rise to a substantive

right under the Due Process Clause to continued enrollment free

from arbitrary state action, the facts of record disclose no such

action.” Jd.

Justice Powell, in concurrence, however, stated that he did not

believe that a property interest derived from state law is entitled

to substantive due process protection because “due process rights are

created only by the Constitution.” Jd. at 229 (Powell, J., concur-

ring). The fact that the state may have labeled the interest “prop-

erty” did not entitle it “to join those other, far more important

interests that have heretofore been accorded the protection of sub-

stantive due process.” Jd. at 230.

When confronted with substantive due process allegations, th.

lower courts have responded differently. Compare Archuleta, 936

F.2d at 489 ‘claim that arbitrary deprivation of government em-

ployment violated substantive due process fails when plaintiff re-

ceived an adequate state postdeprivation hearing) and Kauth, 852

F.2d 951 ‘claim that wrongful attachment of property violated sub-

stantive due process fails because the deprivation of state-created

at 683 (denial of a license to operate a

stantive due process if the government actions by

bias, bad faita, or improper motive) and Spence, 873 F.2d at 258

(denial of a building permit violates substantive due process if the

property was deprived for an improper motive and the means were

v

U.S. 1057 (1990).

17

people as to be ranked fundamental,” Snyder v. Massa-

chusetts, 291 U.S. 97, 105 (1934), or “implicit in the

concept of ordered liberty,” Palko vy. Connecticut, 302

U.S. 319, 325 (1937). Alternatively, a claimant can in-

voke substantive due process if the government action in

question “shoeks the conscience,” Rochin y. California,

342 U.S. 165, 172 (1952), or is “‘vsed for purposes of

oppression.’” Daniels v. Williams, 474 US. 327, 331

(1986) ‘quoting Murray's Lessee v. Hoboken Land &

Improvement Co., 59 U.S. (18 How.) 272, 277 (1856)).

As Justice Stevens recently explained, however,

the Court has always been reluctant to expand the

concept of substantive due process because guideposts

for responsible decisionmak in this unchartered

area are scarce and open-ended The doctrine of judi-

cial self-restraint requires us to exercise the utmost

care whenever we are asked to break new ground

in this field. It is important, therefore, to focus on

the allegations in the complaint to determine how

petitioner describes the constitutional right at stake

and what the city allegedly did to deprive her . . .

of that right.

Collins, 112 8. Ct. at 1068 (citing Regents of Univ. v.

Ewing, 474 US, 214, 225-26 (1985)). Even if the facts

alleged by petitioners are assumed to be true, petitioners

are unable to demonstrate that the damage to and tem-

porary deprivation of their trailer “shocks the conscience”

or violates any fundamental right.

18

Rochin NV. California, 342 U.s. 165 (1952). In Rochin,

after deputies jumped upon the plaintiff and attempted to

extract capsules from his mouth, they took him to a hos-

pital and forced a tube into his stomach against his will.

//. at 166. The Court found these methods “too close to

the rack and screw” and “bound to offend even hardened

sensibilities.”” /d. at 172.

In this case, by contrast, the damage to petitioners’

trailer and the temporary deprivation of its use, while

unfortunate to be sure, do not approach conduct that

“shocks the conscience’. Even when the facts are read

in the light most favorable to the petitioners, they fall

far short of demonstrating that respondents engaged in

“wanton destruction” (Pet. Br. 49) of the Soldals’ trailer.

On the contrary, it is undisputed that respondents en-

sured that the trailer would be safely stored on private

property adjacent to Willoway Terrace rather than on

the shoulder of a local intersection, as the park owners’

management had planned. District Court Mem. Op. at 4.

Moreover, respondents made sure that the Soldals would

immediately be provided with accommodation at Willoway

Terrace’s expense. /d. at 5. In short, respondents’ conduct

during the eviction was not even arguably the sort of

egregious government abuse of power that shocks the

conscience and therefore violates a citizen’s right to sub-

stantive due process.

2. The Damage To The Trailer And Temporary

Deprivation Of Its Use Did Not Deprive Peti-

tioners Of A Fundamental Right.

Even if it is assumed that the damage was inten-

tional, there is no right “implicit in the concept of or-

dered liberty,” Palko, 302 U.S. at 325, to be safe from

intentional property damage, even damage done to a

mobile home in a civil dispute. Petitioners can point to

no authority to support their assertion to the contrary.

As Justice Scalia stated in Michael H. v. Gerald D., 491

U.S. 110 (1989) (plurality opinion) :

19

Without that core textual meaning as a limitation,

defining the scope of the Due Process Clause ‘has at

times been a treacherous field for this Court,’ giving

‘reason for concern lest the only limits to. . . judicial

intervention become the predilections of those who

happen at the time to be Members of this Court.’

Id. at 121 (quoting Moore v. East Cleveland, 431 U.S.

494, 502 (1977)). Nor should the fact “{t]hat the Court

has ample precedent for the creation of new constitu-

tional rights . . . lead it to repeat the process at will.”

Id. at 122 (quoting Moore, 431 U.S. at 544 (White, J.,

dissenting) ). This Court would have to expand the here-

tofore narrow category of “fundamental rights” to an

unprecedented extent in order to bring petitioners’ claim

within its scope.

Under petitioners’ expansive theory of substantive due

process, routine evictions and repossessions in which po-

lice officers are present to maintain the peace would give

rise to fundamental rights governed by federal constitu-

tional law. As this Court has stated, however, “Our Con-

stitution 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

regulate liability for injuries that attend living together

in society.” Daniels v. Williams, 474 U.S. 327, 332

(1986). This Court has repeatedly rejected attempts to

transform Section 1983 into a “font of tort law.” Paul

v. Davis, 424 U.S. 693, 701 (1976). This case requires

the Court once again to refuse to withdraw matters of

essentially local concern from the exclusive ambit of state

law.

20

CONCLUSION

The judgment of the court of appeals should be

affirmed.

CARTER G. PHILLIPS

MARK D. HOPSON

MARK E. HADDAD

SIDLEY & AUSTIN

1722 Eye Street, N.W.

Washington, D.C. 20006

(202) 736-8000

Of Counsel

June 23, 1992

Respectfully submitted,

RICHARD RUDA

Chief Counsel

STATE AND LOCAL LEGAL CENTER

Suite 345

444 North Capitol Street, N.W.

Washington, D.C. 20001

(202) 434-4850

Counsel of Record for the

Amici Curiae