Thursday, March 22, 2007

Deputy's Alleged On-Duty Stalking Not Unconstitutional, But Might Be Tortious

ALTY v. COUNTY OF BOONE, USCA-7 No. 04-4162, 2007 U.S.App. LEXIS 6451, on appeal from USDC-ILND, before Chief USCJ Easterbrook, USCJs Ripple, Kanne, opinion per curiam, dissent by Ripple, filed 21 Mar 2007.

LONG STORY SHORT: A deputy who was on duty, in uniform, and in a patrol car when he repeatedly surveilled and followed a dating couple did not search or seize them or deny them due process, and thereby did not violate the Constitution, but might still be liable in tort under state law. Binding in IL, IN, WI.

FACTS: Defendant took offense when Plaintiff, a Belvidere, IL police officer, arrested a friend of Defendant's for DWI. Defendant, a Boone County, IL deputy sheriff, began to use his duty time to harass, annoy, and intimidate Plaintiff and his girlfriend. Defendant abandoned calls for service and traffic stops to follow Plaintiffs around, or station his patrol car outside the girlfriend's workplace or other places that the couple happened to be. Eventually, Defendant provoked a personal confrontation with Plaintiff. Defendant went so far as to search a cell phone belonging to a friend of Plaintiff to see if they had called each other lately. Plaintiff filed numerous complaints with the Boone County Sheriff's Department regarding Defendant's behavior, without result.

PROCEDURE: Plaintiff and his girlfriend sued Defendant and Boone County in U.S. District Court for the Northern District of Illinois per 42 U.S.C. § 1983 for violating their First, Fourth, Fifth, and Fourteenth Amendment rights under color of state law, and for intentional infliction of emotional distress under Illinois law. Defendants moved to dismiss for failure to state a claim. The trial court ruled that even taking the complaint to be true, Plaintiffs had no legitimate expectation of privacy where Defendant stalked them, their relationship did not suffer, and Defendant's behavior was nowhere near as outrageous as Illinois tort law required to state a cause for IIED. COMPLAINT DISMISSED with prejudice. Plaintiffs appealed to the U.S. Court of Appeals for the Seventh Circuit.

DECISION: To invoke the protection of 42 U.S.C. § 1983, Plaintiffs had to show that Defendant, acting under color of state law, violated one or more of their constitutional rights. Defendant conceded that whatever his actions were, since he was on duty, in uniform, and in a patrol car at the time, they were under color of state law. However, that was all Plaintiffs could show, even taking the complaint as true.

Fourth Amendment liability requires an unreasonable search and/or seizure. A search is a state intrusion upon an individual's legitimate interest in privacy, which means that Plaintiffs had to show that they tried to keep private the object of the complained-of search. Here, Plaintiffs were on public roads when Defendant, on the same public roads, followed them. Plaintiffs were in businesses open to the public, and Defendant was himself in public places while he surveilled Plaintiffs. Though Defendant may well have searched a third person's cell phone in order to harass Plaintiffs, they had no standing to assert a reasonable expectation of privacy in someone else's cell phone.

A seizure may happen when police intentionally restrict the freedom of a person to move around in public. But Defendant, by doing no more than following and watching Plaintiffs, did not in any way keep them from going about their business, and Plaintiffs did not submit to any show of force. Defendant neither searched nor seized Plaintiffs or their property, and could not have violated the Fourth Amendment.

As to the other constitutional claims, Defendant did not interfere with Plaintiffs' right of intimate association, at least not to the point of shocking the conscience, which is the rare and high standard of relief necessary for substantive due process violations. Also, Plaintiffs could have sought a state restraining order, but never did. However disturbing his behavior was at some level, Defendant did not infringe Plaintiffs' First, Fifth, or Fourteenth Amendment rights. Consequently, neither could Boone County have violated Plaintiffs' constitutional rights. DISMISSAL AFFIRMED IN PART.

However, the Seventh Circuit ruled that the trial court incorrectly applied the stricter Illinois state pleading standards, instead of the more generous federal rule of notice pleading, and under the latter, Plaintiffs stated a cause for intentional infliction of emotional distress. With no federal question now pending, the trial court should relinquish supplemental jurisdiction over the state claims. DISMISSAL VACATED IN PART and cause remanded for further consistend proceedings.

The dissent concurred with much of the majority, but would have ruled that Defendant willfuly abused his governmental power for his own wrong purposes. His long-term and deliberate harassment of Plaintiffs deprived them of substantive due process to the point that it objectively shocked the conscience.

EDITORIAL: At least one of these people has too much time on his or her hands. I don't know what to think. It is mighty odd that a deputy could blow off calls and leave 10-61s to go bug somebody he's mad at, again and again, without any supervisor noticing. But stranger things have happened. If, on the other hand, this deputy was really NOT playing Fatal Attraction, then somebody needs to have a looong talk with the officer who brought this suit.

As I first started to read this case, I just looked at the basic facts and stopped to ruminate: Is following somebody around and waiting outside in your patrol car a search or seizure? (squeaking sounds of wheels turning) ummmm ... well no. That's how police can follow and watch bad guys, and pick up their trash with DNA on it, and run a K9 sniff, and lots of other tools in the toolbox, because when you and the police are both in public places, then it's a free-for-all. If you want privacy, go inside your house! SHOULD we have more privacy? Maybe we should, but we'd need to change the Bill of Rights. That is something that civil libertarians often don't understand; instead of judges making up law as they go along, or ignoring what they don't like, get the law changed by the democratic process so that we maintain a government of laws, not of courts.

No comments: