Soldal v. County of Cook

• Decision Date: 24 January 1991
• Docket Number: No. 89-3631,89-3631
• Citation: 923 F.2d 1241
• Parties: Edward SOLDAL and Mary Soldal, individually and as legal guardians for Jimmy Soldal, Alena Soldal, Joseph Soldal and Jessie Soldal, Plaintiffs-Appellants, v. COUNTY OF COOK, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1241

923 F.2d 1241

Edward SOLDAL and Mary Soldal, individually and as legal guardians for Jimmy Soldal, Alena Soldal, Joseph Soldal and Jessie Soldal, Plaintiffs-Appellants, v. COUNTY OF COOK, et al., Defendants-Appellees.

No. 89-3631.

United States Court of Appeals Seventh Circuit.

Argued Sept. 14, 1990.

Decided Jan. 24, 1991.

Flaum, Circuit Judge, concurred in part, dissented in part, and filed opinion.

John L. Stainthorp, Peoples Law Office, Chicago, Ill., for plaintiffs-appellants.

Madeleine S. Murphy, Asst. State's Atty., Randolph M. Johnston, Office of the State's Atty. of Cook County, Chicago, Ill., for defendants-appellees.

Randolph M. Johnston, Office of the State's Atty., Chicago, Ill., John C. Vojta, Vojta & Lagattuta, Schaumburg, Ill., for Jeffrey Peterson, Kimberly Giovanni and Margaret Celeski.

Randolph M. Johnston, Office of the State's Atty., John J. George, Dennis J. Aukstik, Robert T. Oleszkiewicz, Daley & George, Chicago, Ill., for Margaret Hale and Terrence Properties Inc.

Before CUDAHY, POSNER, and FLAUM, Circuit Judges.

POSNER, Circuit Judge.

This matter is before us on the appeal of the plaintiffs, Edward Soldal and his family, from the dismissal of their civil rights suit (42 U.S.C. Sec. 1983) on the defendants' motion for summary judgment. The defendants are Cook County, Illinois; several officers of the Cook County sheriff's office; Terrace Properties, which owns a trailer park in Elk Grove, Illinois; and Margaret Hale, the manager of the park, together with several other private individuals.

The Soldals had rented a lot in the park as a site for their trailer home, in which they lived with their four children. In August 1987, Terrace Properties filed a suit in an Illinois state court to evict the Soldals. A hearing was scheduled for September 22, but more than two weeks before then Hale called the Cook County sheriff's office to say that she was planning to evict a family that day (September 4) and that, because she feared that the family might resist being evicted, she wanted deputy sheriffs to be present. That afternoon two employees of Terrace Properties came to the Soldals' trailer accompanied by a deputy sheriff. The employees began by wrenching the sewer and water boxes off the side of the trailer home, causing damage to it. When Soldal asked the workers what they were doing, they told him to ask the deputy sheriff, which he did, and the reply was that "he [the deputy sheriff] was there to see that [Soldal] didn't interfere with [Terrace's] workers." The workers tore off the skirting and canopy of the trailer and hooked a tractor to it. Although they also disconnected the phone, Soldal called his lawyer from a pay phone and she in turn called the sheriff's office--which at first denied that there was any deputy sheriff on the scene. Getting no satisfaction, the lawyer advised Soldal, in a second conversation from the pay phone, to file a complaint against Terrace Properties for criminal damage to his property.

When Soldal returned to the trailer from the pay phone, he found two more deputy sheriffs at the scene. He told them that he wanted to file a complaint and they referred him to a lieutenant of the sheriff's police, who was in Hale's office. Soldal went there, and the lieutenant came out and told him to wait outside, then went back in and remained closeted with Hale and several other employees of Terrace Properties for twenty to thirty minutes. When he emerged he told Soldal to talk to the district attorney, then went back into the office. Re-emerging at the end of another half hour he told Soldal that he would not accept a complaint from him because "it was between the landlord and tenant ... [and] they were going to go ahead and continue to move out the trailer." The tractor now pulled the Soldals' trailer free from its moorings. Discussion about where it would be taken ensued, in the course of which Hale said to the lieutenant in Soldal's presence, "I'm going to tell him [Soldal] this in front of you [lieutenant], that he's not allowed to come back to the park," whereupon the lieutenant told Soldal, "Now, you heard what she said."

The Soldals went off to a motel for the night (Terrace Properties had offered to pick up the tab) but left two of their children with a friend who lived in another trailer home in the park. The next morning Soldal returned to the park to pick up the children. He was seen entering the park, and while he was in the friend's trailer a deputy sheriff (who had not been present at the eviction the previous day) came and arrested Soldal because "you're not supposed to be here." He was kept in jail for several hours, charged with criminal trespass. The charge was later dropped.

Soldal continued making unsuccessful efforts to get the sheriff's office to accept a complaint from him. He had better luck in court. On September 9 the state court in which the eviction proceeding was pending found that Terrace Properties had not been authorized to evict the Soldals, and ordered Terrace to put the trailer back on the lot. This was done, but the trailer had been badly damaged during the eviction.

A month later one of the deputy sheriffs who had been involved in the eviction came to the Soldals' trailer, together with a man named Peterson, who had accused Soldal of having struck his car and now repeated the accusation. Soldal replied by accusing Peterson of lying and invited him to step out into the street. The invitation was not taken up but the deputy sheriff asked Peterson whether he wanted to press criminal charges, and when he said he did the deputy sheriff arrested Soldal. Soldal was charged with criminal assault, apparently based on the invitation to fight rather than on whatever earlier skirmishes led the police, with Peterson in tow, to his door. He was also charged with other crimes upon the complaint of two other private persons, who are named as defendants in this suit along with Peterson. But as there is no detail in the record concerning these additional charges and defendants, we ignore them except to note that the charges were later dropped, as was the charge of assaulting Peterson.

Our recital construes the facts as favorably to the plaintiffs as the record will permit. That is what we are supposed to do when deciding whether summary judgment should have been granted. Of course the true facts may turn out to be different and less favorable to the plaintiffs.

The complaint charges in effect two conspiracies. In the first, Terrace Properties and Margaret Hale are accused of conspiring with Cook County and the officers of the sheriff's police to damage the Soldals' trailer and to arrest him without cause. In the second, Peterson is accused of having conspired with Cook County and the officers (not all the same ones) to arrest Soldal a month later. Pendent counts recast the various claims as violations of state tort law as well. On the defendants' motion for summary judgment the district judge dismissed all the claims, both federal and state, on the merits. First of all he found that there had been no conspiracy. True, there was a puzzle: "if the Terrace Properties defendants were clearly committing a criminal trespass, why did the members of the Sheriff's Police who were present--and who were called to the scene by the evicting defendants--stand idly by and do nothing? A reasonable inference would be that they conspired with the private parties not to act." But the sheriff's police "were under no state-law duty to stop the eviction, and in fact were under an opposite duty to not intervene on either side unless some other infringement of the criminal code was committed.... [A] criminal trespass arrest and prosecution cannot be used as a means to determine the right to possession. People v. Evans, 163 Ill.App.3d 561, , 516 N.E.2d 817 (1st Dist.1987)." (Emphasis in original.) As for the two arrests, they were based, the district court concluded, on probable cause.

To recover damages for having been deprived of their property without due process of law, the Soldals must show first that there was a deprivation of property, and second that it was a deprivation by officers of the state. Only after these questions are answered in the affirmative does the question whether there was a denial of due process arise.

The physical damage that Terrace's workers did to the trailer was a deprivation of property. To establish this proposition we begin by noting that if the property had been completely destroyed, this would have been as much a deprivation as if it had been taken away. Reed v. Village of Shorewood, 704 F.2d 943, 949 (7th Cir.1983). Compare United States v. General Motors Corp., 323 U.S. 373, 384, 65 S.Ct. 357, 362, 89 L.Ed. 311 (1945), which establishes that proposition for takings cases. "Deprivation" is the state of being deprived of something, and therefore comes into being when the property is taken from the owner; what happens to the property--whether it is used by someone else or destroyed--is an irrelevance. Severe damage is a partial but, we think, an actionable deprivation. Although we can find no cases on the point, a persuasive analogy is that temporary deprivations frequently have been held actionable under section 1983, as in Tavarez v. O'Malley, 826 F.2d 671, 674 (7th Cir.1987). We cannot see a principled difference between a temporary deprivation on the one hand and damage that reduces the present value of the property to the owner by the same amount, on the other. No doubt, trifling diminutions of value may be disregarded as not rising to the level of deprivations; but that is not a consideration in this case.

But the workers who damaged the Soldals' trailer home were private employees. Only if they, or more plausibly their boss, Hale, were in cahoots with the deputy sheriffs involved in the eviction and arrest can the Soldals obtain a judgment against these private defendants. Of course, if the Soldals...