Justice v. Elrod

• Decision Date: 30 November 1987
• Docket Number: No. 86-3092,86-3092
• Citation: 832 F.2d 1048
• Parties: John C. JUSTICE, Plaintiff-Appellant, v. Richard ELROD, Sheriff of Cook County, Illinois, and Harry G. Comerford, Chief Judge of the Circuit Court of Cook County, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1048

832 F.2d 1048

John C. JUSTICE, Plaintiff-Appellant, v. Richard ELROD, Sheriff of Cook County, Illinois, and Harry

G. Comerford, Chief Judge of the Circuit Court of

Cook County, et al., Defendants-Appellees.

No. 86-3092.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 18, 1987.

Decided Nov. 2, 1987.

Rehearing and Rehearing En Banc Denied Nov. 30, 1987.

Spencer W. Waller, Freeborn & Peters, Chicago, Ill., for plaintiff-appellant.

Madeleine S. Murphy, State's Atty. of Cook County, Chicago, Ill., for defendants-appellees.

Before BAUER, Chief Judge, and CUMMINGS and POSNER, Circuit Judges.

POSNER, Circuit Judge.

John Justice went to the Richard J. Daley Civic Center, in Chicago, to file a pleading in a Cook County circuit court. He was told by sheriff's police that he couldn't enter the building without being searched. He refused to agree to this indignity, and went away. He then brought this suit against the sheriff, the chief judge of the circuit court, and other officials, claiming that to condition his right to enter the building on his consenting to be searched violated his constitutional rights. The defendants filed a motion to dismiss, which the district court granted, 649 F.Supp. 30 (N.D.Ill.1986), stating:

When Justice's claims are properly viewed in Fourth and Fourteenth Amendment terms, McMorris v. Alioto, 567 F.2d 897 (9th Cir.1978) is on all fours and wholly persuasive. McMorris upheld an identical court rule requiring searches, implemented in an identical manner to the one here, because of concerns stemming from threats and episodes of violence affecting public buildings such as the Hall of Justice (at issue in McMorris ) and the Civic Center (at issue here). Defendants point to the late 1983 murders of Judge Henry Gentile and attorney John Piszczor in a Civic Center courtroom as supporting the rule at issue here.

Id. at 31. Justice appealed to us, pro se; he had represented himself in the district court as well. We asked attorney Spencer Waller to file an amicus curiae brief on Justice's behalf. In his excellent brief and forceful oral argument Waller contended that Justice's complaint should not have been dismissed in the absence of any evidence about the nature of the search that Justice would have been required to undergo, the defendants having submitted no affidavits or other evidentiary materials in support of their motion to dismiss.

Waller is correct that just because an airport-style metal-detector search of public buildings in San Francisco has been upheld, it doesn't follow that any search, however intrusive, of persons wanting to enter the Daley Center must be reasonable, and therefore lawful, under the Fourth and Fourteenth Amendments. It would require more than one shooting incident to justify forcing every person who wanted to enter a courthouse in order to file a pleading or argue a motion or watch a trial to strip naked so that his bodily orifices could be inspected for weapons. The reasonableness of a search depends not only on the need to search but also on how intrusive the search is in relation to the need. O'Connor v. Ortega, --- U.S. ----, 107 S.Ct. 1492, 1502, 94 L.Ed.2d 714 (1987); Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979).

It is a matter of common knowledge that the Daley Center, which is only a few blocks from the federal courthouse in which this appeal was argued and the members of this panel have their chambers, uses the standard airport-style metal-detector method of search; and this method, being unintrusive, is constitutionally unproblematic where as here there is some reason--there needn't be much--to expect that armed and dangerous people might otherwise enter. See, e.g., United States v. Henry, 615 F.2d 1223, 1228-29 (9th Cir.1980); McMorris v. Alioto, 567 F.2d 897 (9th Cir.1978). The shooting incident that the district court mentioned supplied reason enough; less would have sufficed. And while we don't know whether Justice himself is dangerous, we infer from the characterization in his brief of the defendants as "weaponless wimps," and the statement in that brief that the defendants "should assume that each and every citizen is bearing arms, as a right, not by permit," that he wants to enter the Daley Center armed. He makes no argument that the search would impede his access to the courts by making the defendants privy to confidential legal papers, compare Henry v. Perrin, 609 F.2d 1010 (1st Cir.1979), or indeed that he has any business in the courts that cannot be handled by mail but instead requires his personal presence.

The defendants, however, neglected to submit to the district court an affidavit describing the method of search used at the Daley Center. We asked their counsel at argument why this simple step had been omitted. She replied that she thought the district court and this court could take judicial notice of Chief Judge Comerford's order requiring that entrants into the Daley Center be searched. We asked whether the order is published; she said no, but that it was posted on the wall of the Daley Center. We asked her whether we can take judicial notice of placards and she wisely acknowledged that we could not. On rebuttal the amicus curiae told us that he had called Chief Judge Comerford's chambers and asked for a copy of the order--and had been told there was no such order. If true, this is a serious oversight, but it is not a fact properly before us on this appeal.

There was no basis for invoking the doctrine of judicial notice in this case, see, e.g., Powers v. Dole, 782 F.2d 689, 695 n. 2 (7th Cir.1986) ("Judicial notice of an unauthenticated government record is improper"); cf. McCormick on Evidence Sec. 335, at pp. 939-40 (3d ed. 1984), and hence there was no excuse for the defendants' omitting the simple step of filing an affidavit explaining the nature of the search to which Justice would be subjected if he wanted to enter the Daley Center. Although Justice in his reply to the motion to dismiss his complaint stated that the searches "involve the use of a metal detector and necessitate the emptying of pockets and visual inspections of hand luggage. A further search is required when the metal detector sounds ...," we cannot treat this statement as a concession that the method of search is no more intrusive than the standard airport search, for there is no evidence concerning the nature of the "further search" to which a person would be subject if the metal detector sounds. Suppose that every time a person activated a metal detector at an airport, he was subjected not to a pat-down search or to inspection by a hand-held metal detector, but to a strip search, as a condition of being allowed to board a plane. It is not obvious that so intrusive a form of search would be justified in every case where the metal detector sounds. Nor--what is more to the point--do the defendants argue that such a search would be justified in the circumstances of this case. Of course it is very unlikely that t...