Soldal v. County of Cook

• Citation: 942 F.2d 1073
• Decision Date: 27 August 1991
• Docket Number: No. 89-3631,89-3631
• Parties: Edward SOLDAL, et al., Plaintiffs-Appellants, v. COUNTY OF COOK, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1073

942 F.2d 1073

60 USLW 2197

Edward SOLDAL, et al., 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.

Reheard En Banc June 11, 1991.

Decided Aug. 27, 1991.

John L. Stainthorp (argued), Peoples Law Office, Chicago, Ill., for plaintiffs-appellants Edward Soldal and Mary Soldal, individually and as legal guardians.

Madeleine S. Murphy, Asst. State Atty., Randolph M. Johnston (argued), Office of State's Atty. of Cook County, Chicago, Ill., for defendants-appellees County of Cook, Lt. Jones, Officer Haritos, Officer Hunt, Officer Vaid, Captain Jackson, Captain Levy and Chief Wittsman.

Randolph M. Johnston, Office of State's Atty. of Cook County, Chicago, Ill., for defendants-appellees Officer Doe and Officer Poe.

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

Randolph M. Johnston, Office of State's Atty. of Cook County, John J. George, Dennis J. Aukstik (argued), Robert T. Oleszkiewicz, Daley & George, Chicago, Ill., for defendants-appellees Margaret Hale and Terrace Properties.

Before BAUER, Chief Judge, and CUMMINGS, WOOD, Jr., CUDAHY, POSNER, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANION and KANNE, Circuit Judges.

POSNER, Circuit Judge.

We granted rehearing en banc to consider the applicability of the Fourth Amendment, which forbids unreasonable searches and seizures, to the removal of a mobile home from a trailer park. The three-judge panel that first heard the appeal held by a divided vote that the removal was not within the scope of the Fourth Amendment. 923 F.2d 1241, 1249-50 (7th Cir.1991). The full court adheres to this conclusion but has decided to elaborate its grounds. This opinion supersedes the panel's discussion of the Fourth Amendment, but in all other respects the panel opinion is reinstated.

Edward Soldal lived with his wife and four children in a trailer home, which he owned, situated on a rented lot in a trailer park in Elk Grove, Illinois. The owner of the trailer park, Terrace Properties, decided to evict the Soldals, and sued in an Illinois state court for an eviction order. Two weeks before the court hearing, Terrace Properties decided to go ahead and evict the Soldals forcibly. Anticipating the possibility of resistance, Margaret Hale, the manager of the trailer park, notified the Cook County sheriff's office; and when two employees of Terrace Properties showed up at the Soldals' trailer home to remove it, they were accompanied by a Cook County deputy sheriff, who told Soldal that he was there to prevent him from interfering with the eviction. Other deputy sheriffs were also at the scene to ensure that the eviction proceeded without interruption. In removing the sewer and water boxes from the side of the trailer home, the employees damaged the home. When they finished disconnecting the home from the utilities, they towed it off the lot and out of the trailer park. The eviction violated Illinois law, because no court order authorizing it had yet been issued--none ever was issued.

The Soldals' suit is against Terrace Properties and Mrs. Hale as well as against the deputy sheriffs, and is brought under 42 U.S.C. § 1983, which provides a civil remedy for the deprivation of federal rights by persons acting under color of state law. An initial problem in such a case, from a plaintiff's standpoint, is how to bring private defendants under the rubric of persons acting under color of state law, a category normally reserved for state and municipal employees. Had the private defendants in this case, Terrace Properties and Mrs. Hale, been acting pursuant to a court order when they had the trailer home removed, this might have made their action state action. Del's Big Saver Foods, Inc. v. Carpenter Cook, Inc., 795 F.2d 1344, 1346 (7th Cir.1986); cf. Edmonson v. Leesville Concrete Co., --- U.S. ----, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991). But they were not; and the action of a private person in enforcing rights conferred on him by state law is not deemed state action. Id. 111 S.Ct. at 2083; Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 485, 108 S.Ct. 1340, 1345, 99 L.Ed.2d 565 (1988); Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 164-65, 98 S.Ct. 1729, 1737-38, 56 L.Ed.2d 185 (1978). Otherwise everything would be state action, since what law does not forbid it permits.

As for the public defendants in this case--the deputy sheriffs (county police)--the mere presence of police at the scene of a private act (here, the eviction of the Soldals by Terrace's employees) in which they do not participate does not transform the private act into a public one. Gramenos v. Jewel Cos., 797 F.2d 432, 435 (7th Cir.1986). But there was more here. The eviction was unlawful, and Soldal had a common law right to resist it forcibly, although his right was limited to using mild force. The deputy sheriffs prevented Soldal from exercising his right, and while this by itself may not have made them actual participants in the eviction, the condition of the record (the case was dismissed on summary judgment) requires us, as the panel opinion explained, to assume that there was a conspiracy between the private and the public defendants--that the deputy sheriffs joined Terrace Properties in a scheme to get rid of a pesky tenant, a troublemaker. 923 F.2d at 1247-48. If so, it is as if the deputy sheriffs themselves seized the trailer, disconnected it from the utilities, and towed it away. Equivalently it is as if they had deputized the private defendants to assist them. Thus, on the state of the record, we must regard all of the defendants as having acted under color of state law.

This frames the question that we granted rehearing en banc to decide: If police officers disconnect and tow away a trailer home, can their action be challenged under the Fourth Amendment as an unreasonable seizure? The question is of surprising novelty, and its implications for other forms of eviction and even perhaps for the repossession of automobiles and other personal property make it of potentially far-reaching practical significance. The history of the question in the courts can be recounted briefly. The question was left open in Fuentes v. Shevin, 407 U.S. 67, 96 n. 32, 92 S.Ct. 1983, 2002 n. 32, 32 L.Ed.2d 556 (1972). A glancing reference in Tavarez v. O'Malley, 826 F.2d 671, 678 (7th Cir.1987), expressed the skepticism of three members of this court. The Third Circuit gave a peremptory "no" in Lebowitz v. Forbes Leasing & Finance Corp., 456 F.2d 979, 980 (3d Cir.1972). There is, as we shall see, a Tenth Circuit case that bears closely though not decisively on the issue. The district courts are divided on it. Compare Dorsey v. Community Stores Corp., 346 F.Supp. 103 (E.D.Wis.1972) (3-judge panel), and Laprease v. Raymours Furniture Co., 315 F.Supp. 716, 721-22 (N.D.N.Y.1970) (same), with McCormick v. First National Bank, 322 F.Supp. 604 (S.D.Fla.1971).

It is no accident that the question has not arisen more often. The straightforward way for a plaintiff to mount a challenge under section 1983 to an eviction or repossession or other deprivation of property is by claiming that he was deprived of his property without due process of law, as in the Del's case cited earlier and a host of other cases. The panel held that the Soldals had abandoned any such claim. 923 F.2d at 1248. They were prudent to do so. In the circumstances of this case they would have faced a distinctly uphill fight to establish it. The Supreme Court has held that the denial of procedural rights (here the rights that Illinois law grants tenants in eviction proceedings) as a result of the random and unauthorized acts of subordinate public officers (the deputy sheriffs in this case) is not actionable under section 1983 unless the plaintiff lacks adequate judicial remedies under state law. Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981); Zinermon v. Burch, 494 U.S. 113, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990); see also Easter House v. Felder, 910 F.2d 1387, 1396-97 (7th Cir.1990) (en banc). Illinois law entitled the Soldals to sue Terrace Properties and Mrs. Hale for the damages caused by the illegal eviction. Ill.Rev.Stat. ch. 80, p 221. The Soldals had an adequate remedy. They failed to use it.

The existence of adequate legal remedies for an illegal eviction such as occurred here--state remedies if they are adequate, 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 intended to regulate garden-variety commercial disputes of the sort involved in this case. Why bend, when the Soldals had adequate alternatives?

The Fourth Amendment regulates both "searches" and "seizures" and it will be helpful to distinguish between the two. Even though we are treating the employees of Terrace who did the actual disconnection and removal as if they had been police officers employed by the State of Illinois, we can hardly construe their conduct as a police search. The "officers" did not enter the Soldals' trailer home. They had no interest in what was in it. They were not conducting an investigation or seeking to make an arrest. There was, however, at least in a literal sense, a "seizure" of the home and its contents; and while most seizures that are challenged under the Fourth Amendment are incidental to a search, some are not. The most common seizure challenged under the amendment is an arrest, and it is actionable whether or not it is accompanied by a search.

With only a few exceptions, the seizures held to be forbidden by the Fourth Amendment have been seizures...