In the
United States Court of Appeals
For the Seventh Circuit
No. 99-1079
RIXSON M. PERRY,
Plaintiff-Appellant,
v.
MICHAEL F. SHEAHAN, Sheriff of Cook County,
EUGENE SACCO, Assistant Chief, Cook County
Sheriff’s Office, ROBERT SHERMAN, Sergeant,
Cook County Sheriff’s Office, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 2313--James F. Holderman, Judge.
Argued September 27, 1999--Decided August 2, 2000
No. 99-2741
RIXSON M. PERRY,
Plaintiff-Appellant,
v.
MICHAEL F. SHEAHAN, Sheriff of Cook County,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 1164--James F. Holderman, Judge.
Argued April 14, 2000--Decided August 2, 2000
Before POSNER, RIPPLE, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Rixson M. Perry sued
Michael F. Sheahan, the Sheriff of Cook County,
and some of Sheahan’s employees under 42 U.S.C.
sec. 1983, alleging that they violated his
constitutional rights in seizing firearms and
other items from his apartment. The defendants
filed a motion to dismiss arguing that Perry
lacked standing to seek declaratory and
injunctive relief, and that qualified immunity
shielded them from any damages. The district
court granted their motion, and Perry appeals.
On a motion to dismiss we accept all well-
pleaded allegations in the complaint as true,
construing ambiguities in favor of the plaintiff.
Curtis v. Bembenek, 48 F.3d 281, 283 (7th Cir.
1995). According to the complaint, the seizure
occurred during an aborted eviction. On February
23, 1998, two Cook County Sheriff deputies
forcibly entered Rixson Perry’s apartment for the
purpose of executing an eviction order. Perry had
never received notice of the action for
possession, and contacted his attorney who sought
an emergency stay of the eviction. While Perry
awaited the stay, Sergeant Sherman and Deputy
Sheriff Mak arrived from the Cook County
Sheriff’s Office. The stay was granted a couple
of hours later. At that point, the first deputy
sheriffs had been in the apartment for three
hours, and Sherman and Mak had been there for
ninety minutes. Perry and Sherman subsequently
spoke with Assistant Chief Sacco by phone, and
Sacco ordered that the eviction be halted. Sacco
further stated, however, that the Sheriff’s
office had a policy of seizing any firearms found
in the course of evictions and he directed
Sherman and Mak to seize Perry’s firearms
pursuant to that procedure. Over Perry’s
objections, defendants Sherman and Mak then
removed: "several firearms, most of which were in
a disassembled non-functioning state, awaiting
repair or restoration, a sizeable quantity of
firearms parts, ammunition and accessories,
several knives, most of which were small, folding
pocket knives and some police equipment,
including handcuffs and a baton, which were on a
wall plaque commemorating Perry’s early police
service." Complaint at 23.
Approximately two months later, Perry had still
not recovered his possessions from the Sheriff’s
office, although no one contests that they were
lawfully owned by him. On April 15, 1998, he
filed a complaint under 42 U.S.C. sec. 1983
against Sheahan in his official capacity and
against Sacco, Sherman and Mak in their
individual capacities (Perry I). He sought: (1)
a declaration that the policy of seizing firearms
during an eviction without any predeprivation
process was a violation of due process; (2) an
injunction prohibiting implementation of that
seizure policy; (3) an order requiring Sheahan to
return the property to Perry; and (4) damages
against Sacco, Sherman, and Mak for their role in
the seizure. After Perry filed a motion for
summary judgment, the defendants agreed to return
the confiscated property, and the court entered
an order on June 29, 1998 requiring the return of
the property by July 10, 1998. Perry recovered
property pursuant to that order, but contends
that the defendants still possess some seized
property. The district court subsequently granted
the defendants’ motion to dismiss the remaining
claims, holding that Perry lacked standing to
seek declaratory and injunctive relief, and that
qualified immunity prevented the imposition of
damages against Sherman, Sacco, and Mak. Perry
appealed the court’s ruling dismissing those
claims.
While the appeal was pending in this court,
Perry instituted yet another case in the district
court against the defendants (Perry II), raising
identical issues. Perry II differed from Perry I
only in that it contained a claim for damages
against Sheahan in his individual capacity, and
it contained the additional factual allegations
that Perry was a tenant in Cook County and
therefore subject to eviction again. The district
court dismissed this case as well, holding that
the claims for damages were barred by the
doctrine of res judicata, and that the complaint
still failed to establish an injury-in-fact
sufficient to confer standing for declaratory and
injunctive relief. Because our resolution of
Perry I disposes of Perry II, we will first
address the Perry I appeal.
I.
A.
As Perry is aware from a prior case in this
court, we review de novo an order dismissing a
case for lack of standing. Perry v. Village of
Arlington Heights, 186 F.3d 826, 827 (7th Cir.
1999). The standing requirement inheres in
Article III of the Constitution, which requires
that a party seeking to invoke the jurisdiction
of the federal courts must present an "actual
case or controversy." City of Los Angeles v.
Lyons, 461 U.S. 95, 101 (1983). The purpose of
that requirement is to ensure that the plaintiffs
have "’a personal stake in the outcome’ in order
to ’assure that concrete adverseness which
sharpens the presentation of issues’ necessary
for the proper resolution of constitutional
questions." Id. (citations omitted). To ensure
that personal stake, a plaintiff seeking to
invoke federal court jurisdiction must
demonstrate: (1) an injury that is concrete,
particularized, and actual or imminent rather
than conjectural or hypothetical; (2) a causal
connection between the injury and the challenged
conduct, such that the injury may be fairly
traceable to that conduct; and (3) a likelihood
that the injury will be redressed by a favorable
decision. Lujan v. Defenders of Wildlife, 504
U.S. 555, 560-61 (1992); Perry, 186 F.3d at 829;
American Federation of Govt. Employees v. Cohen,
171 F.3d 460, 466 (7th Cir. 1999). Perry cannot
meet that test here.
As the district court recognized, this case is
analogous to that presented in City of Los
Angeles v. Lyons, 461 U.S. 95 (1983). In that
case, Lyons sued the City of Los Angeles and
certain of its police officers, alleging that the
officers, without provocation, subjected him to
a chokehold after stopping him for a traffic
violation. He sought damages and an injunction
barring the use of chokeholds except where a
suspect threatens the use of deadly force.
Although recognizing that Lyons had standing to
seek damages, the Supreme Court held that he
lacked standing for injunctive relief. The Court
held that "’[p]ast exposure to illegal conduct
does not in itself show a present case or
controversy regarding injunctive relief . . . if
unaccompanied by any continuing, present adverse
effects.’" Id. at 102, quoting O’Shea v.
Littleton, 414 U.S. 488, 495-96 (1974). Because
Lyons could not show a realistic threat that he
would be subjected to a chokehold in the future,
he possessed standing only to seek damages for
the past conduct. In other words, Lyons lacked a
personal stake in the future application of the
chokehold, because he could not demonstrate a
realistic threat that he would be again subjected
to a chokehold.
Perry’s situation parallels that in Lyons
because Perry has alleged only past injury, but
cannot demonstrate a realistic threat that he
would be the subject of another forcible eviction
in Cook County that would result in the seizure
of his property. In fact, Perry makes no argument
in the appeal of Perry I that he faces that
future threat. He argues instead that he has
standing to seek prospective relief because
defendant Sheahan still possesses some of his
property that was seized during the eviction.
Although poorly articulated, his argument appears
be that his past exposure to illegal conduct
establishes a present case or controversy because
it is accompanied by continuing, present adverse
effects, thus invoking the exception recognized
in O’Shea and Lyons.
Even if we were to view the retention of some
of his property as a continuing, present adverse
effect, however, Perry is no closer to
establishing standing because an injunction
prohibiting future seizures in the course of
evictions or a declaration that the policy itself
is unconstitutional would do nothing to redress
that ongoing injury. The equitable relief sought
by Perry does not address the property currently
held, but merely seeks a declaration that the
policy is unconstitutional and a prohibition of
future seizures under the eviction policy. In
fact, Perry requested and received relief for the
injury caused by the continued retention of his
property in the form of an order from the
district court requiring the return of his
property. Only damages, not an injunction or a
declaratory judgment relating to the future use
of the policy, will provide further relief if the
property is not returned. See Bryant v. Cheney,
924 F.2d 525, 529 (4th Cir. 1991) (injunctive
powers of the federal courts are broad, but
"Article III simply precludes their empty use to
enjoin the conjectural or declare the fully
repaired broken.") Thus, Perry cannot meet the
third part of the standing analysis articulated
above, which requires a likelihood that the
injury can be redressed by a favorable decision.
Standing does not automatically attach once an
ongoing injury is identified. As the Supreme
Court has recognized, "[r]elief that does not
remedy the injury suffered cannot bootstrap a
plaintiff into federal court; that is the very
essence of the redressability requirement." Steel
Co. v. Citizens for a Better Environment, 523
U.S. 83, 107 (1998). Because an injunction or
declaratory judgment addressing future seizures
will not redress his ongoing injury, he lacks the
personal stake in the outcome that provides
standing.
A similar attempt to bootstrap standing was
rejected in Natural Resources Defense Council v.
Pena, 147 F.3d 1012, 1014 (D.C. Cir. 1998).
There, the district court had granted a permanent
injunction prohibiting the Department of Energy
from using a report prepared by a committee
organized in violation of the Federal Advisory
Committee Act (FACA). The D.C. Circuit reversed
and remanded the case because it "had serious
doubts" whether the use injunction redressed any
of the claimed injuries. Id. The injuries
asserted in that case were the exclusion from
past committee meetings and the denial of access
to Committee records and documents. Id. at 1021.
The injunction, however, would not give the
appellees access to documents and future meetings
and in fact the Committee had been dissolved and
would no longer generate reports. Id.
Accordingly, the court held that the
redressability element was not met, noting:
"[t]hat the appellees may have sustained a
continuing injury by virtue of the Department’s
ongoing denial of FACA access to Committee
documents and records cannot support their
standing to sue for an injunction that does not
itself address the access issue." Id. at 1022.
Perry similarly claims an ongoing injury
unrelated to the relief sought. That is
insufficient to establish standing for injunctive
and declaratory relief under Article III. See
also City of Houston, Tex. v. Department of
Housing & Urban Development, 24 F.3d 1421, 1429
(D.C. Cir. 1994) (plaintiff cannot obtain
declaratory relief in challenge to ongoing agency
policy if plaintiff’s specific claim is otherwise
fully resolved and plaintiff lacks standing to
attack future applications of the policy). In
fact, Perry’s case illustrates the purpose served
by the standing requirements. He would be a
particularly poor litigant on this issue because
he has made no showing that he is threatened with
a future eviction, and his eviction was unusual
in that the seizure occurred after the eviction
was aborted. Therefore, the likely justifications
for the policy--the safety concerns with
literally placing firearms in the street--were
not even applicable to his eviction. The district
court did not err in holding that Perry lacked
standing to pursue injunctive and declaratory
relief in Perry I.
B.
We are left, then, with Perry’s claims for
damages against Sacco, Sherman, and Mak in their
individual capacities. The district court
dismissed those claims as well, concluding that
plaintiff "failed to show that defendants’
seizure of his firearms during the eviction
violated a clearly established constitutional
right." Dist. Ct. Op. at 7.
Our analysis begins with the well-established
proposition that government officials performing
discretionary functions are entitled to qualified
immunity from liability for civil damages unless
their conduct violates clearly established
statutory or constitutional rights of which a
reasonable person would have known. Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982); Knox v.
McGinnis, 998 F.2d 1405, 1409 (7th Cir. 1993).
Perry thus has the burden of demonstrating that
the defendants violated a constitutional right
that was clearly established at the time of the
incident in February 1998. Conner v. Reinhard,
847 F.2d 384, 388 (7th Cir. 1988). "This is not to
say that an official action is protected by
qualified immunity unless the very action in
question has previously been held unlawful, but
it is to say that the unlawfulness must be
apparent." Anderson v. Creighton, 483 U.S. 635,
640 (1987) (citations omitted). Thus, Perry need
not identify a case involving the exact fact
pattern at bar, but must be able to identify case
law in a closely analogous area. Conner, 847 F.2d
at 388.
The district court held that there was no
established constitutional right against the
seizure of property during an eviction. That
analysis, however, assumes a factual scenario not
present here. Although the defendants entered the
home for the purpose of effecting an eviction,
the seizure of the firearms occurred only after
the eviction was stayed pursuant to an order of
the court. Therefore, the defendants could not
reasonably believe that they were seizing the
firearms pursuant to an order of eviction. The
order of eviction justified their initial
entrance into the apartment, but provides no
cover for actions undertaken after they were
informed of the court-ordered stay. The question,
then, is whether they could reasonably have
believed that the seizure was nevertheless
constitutional.
Perry does a poor job of articulating the
constitutional theory under which he is
challenging the seizure, but appears to rely on
the Fifth and Fourteenth Amendments for his
claim. We have repeatedly held, however, that "a
complaint need not identify a legal theory, and
specifying an incorrect theory is not fatal."
Bartholet v. Reishauer A.G. (Zurich), 953 F.2d
1073, 1078 (7th Cir. 1992). Moreover, Perry acted
pro se in the district court, and thus we must
construe his pleadings liberally. Coulter v.
Gramley, 93 F.3d 394, 397 (7th Cir. 1996). His
complaint unambiguously sets forth a challenge to
the seizure of his property by government
officials. That language raises due process and
Fourth Amendment concerns, which the district
court undoubtedly would have addressed at more
length if it had not been under the mistaken
impression that the seizure occurred during the
eviction. On appeal, Perry properly argues that
the district court erred in presuming that the
seizure occurred during the eviction. Because the
conduct alleged in the complaint would violate
the clearly-established right against
unreasonable seizures, we reverse the district
court’s dismissal of the damages claims on the
grounds of qualified immunity.
It is beyond question that the Fourth Amendment
applies to the seizure of the firearms in this
case. In Soldal v. Cook County, Illinois, 506
U.S. 56, 61 (1992), the Supreme Court noted that
a seizure of property occurs "when there is some
meaningful interference with an individual’s
possessor interests in that property." (citations
omitted). That standard is certainly met by the
physical removal of the property and the
retention of that property by the defendants.
Soldal further held that "the right against
unreasonable seizures would be no less
transgressed if the seizure of the house was
undertaken to collect evidence, verify compliance
with a housing regulation, effect an eviction by
the police, or on a whim, for no reason at all."
Id. at 69. Thus, regardless of whether the
seizure occurred during an eviction or, as here,
after an eviction was aborted, clearly
established law required that the seizure must
comport with the Fourth Amendment. The critical
issue for Fourth Amendment purposes is whether
the seizure was reasonable. Id. at 61-62. Of
course, if the seizure were undertaken pursuant
to a court order of eviction, a showing of
unreasonableness would be "a laborious task
indeed," although not an impossible one. Id. at
71, citing Specht v. Jensen, 832 F.2d 1516 (10th
Cir. 1987) (officers who conducted search of home
under state court order of possession and writ of
assistance held liable for violation of Fourth
Amendment). Here, the defendants do not have the
benefit of acting pursuant to a court order
because the eviction was stayed at the time of
the seizure. We must determine, then, whether the
defendants could have reasonably believed that
the seizure was constitutional even absent a
court order authorizing the seizure and absent
the justification that the firearms could present
a danger to the public if placed in the street.
The general rule is that searches and seizures
in a home without a warrant are presumptively
unreasonable. Arizona v. Hicks, 480 U.S. 321,
326-27 (1987). There are, of course, a number of
well-recognized exceptions to the warrant
requirement but none appear to fit this case. The
defendants argue simply that no established law
prevented the seizure of personal property
whether during an eviction or even after they
were informed that the eviction was stayed. That
position is stunning, and ignores virtually all
Fourth Amendment law. At its extreme, it would
allow officers, once lawfully in a home, to seize
any property with impunity./1 At a minimum, it
would give officers carte blanche to conduct
searches and seizures within a home even after an
eviction is called off. That directly contradicts
Soldal’s recognition that Fourth Amendment
limitations apply even during an eviction, let
alone after an eviction is stayed.
We add that no exception to the warrant
requirement is apparent from the facts. The most
obvious potential argument is the plain view
exception. That exception, however, is met only
if: (1) the deputy did not violate the Fourth
Amendment in arriving at the place from which the
items were plainly viewed; (2) the items were in
plain view and their incriminating character was
"immediately apparent;" and (3) the deputies had
a lawful right of access to the object itself.
Horton v. California, 496 U.S. 128, 136-37
(1990). Because the deputies lawfully entered and
searched the premises pursuant to a then-valid
eviction order, their discovery of the weapons in
the first place was lawful. The analysis fails,
however, on the second prong because no facts
support a finding that the officers possessed
probable cause to believe the items seized from
the house were linked to criminal activity. See
United States v. Bruce, 109 F.3d 323, 328 (7th
Cir. 1997). Because all of the weapons seized can
be lawfully possessed, the deputies could not
reasonably presume that they were of an
incriminating character. Thus, in Bruce we
recognized that shotgun shells are not inherently
incriminating because they can be lawfully
possessed, but that they may assume an
incriminating or suspicious nature in connection
with the crime being investigated. Id. Here,
there was no crime being investigated, and thus
no probable cause to believe that the weapons
were linked to criminal activity. Accordingly,
the plain view exception is inapplicable, and the
facts do not reveal any other possible
justification that would render the seizure
reasonable./2
We note that even Boone v. State, 383 A.2d 412,
420 (Md. 1978), which the dissent proffers as
supporting its position, held unconstitutional a
seizure which occurred during an eviction because
the items seized were not incriminating on their
face. In Boone, the court stated that it could
equate the policy of not putting a tenant’s
dangerous or valuable items on the street, with
the inventory rationale of Fourth Amendment
jurisprudence and the concern for public safety.
Id. at 419. Neither justification applies where
the eviction is stayed and the property would
otherwise remain with the tenant. No case implies
that such an arbitrary seizure is lawful, and
basic Fourth Amendment law establishes it is not.
In summary, it was clearly established law at
the time of the seizure that even seizures
pursuant to an eviction are not immune to the
strictures of the Fourth Amendment. Here, the
defendants seized the weapons even though they
knew that the eviction had been stayed by order
of the court and thus that the seizure was not
pursuant to any court order. It was also clearly
established that warrantless seizures of personal
effects from a home are presumably unreasonable.
No exception to that rule or other circumstances
apparent in this motion to dismiss would render
objectively reasonable their belief that this
seizure was constitutional. Therefore, there is
no basis for qualified immunity, and the decision
of the district court in Perry I must be reversed
on this issue.
II.
That leaves us with Perry II, which presents an
identical issue to that in Perry I. The only
claim in Perry II that was not raised in Perry I
was the request for money damages against Sheahan
in his individual capacity. In his reply brief
before this court, however, Perry withdrew that
claim, and limited the appeal to the claims for
injunctive and declaratory relief. Therefore, we
are left with a case that is identical to Perry
I, except for the inclusion of some facts that
Perry (mistakenly) believes would establish his
standing to seek injunctive and declaratory
relief. Perry asserts that Perry II is beyond the
reach of res judicata because the injunctive and
declaratory claims were dismissed for lack of
subject matter jurisdiction based on his failure
to demonstrate standing, and thus it was not a
judgment on the merits under R. 41(b). That
truism gets him nowhere. Although only judgments
on the merits preclude parties from litigating
the same cause of action in a subsequent suit,
that does not mean that dismissals for lack of
jurisdiction have no preclusive effect at all. A
dismissal for lack of jurisdiction precludes
relitigation of the issue actually decided,
namely the jurisdictional issue. Magnus
Electronics, Inc. v. La Republica Argentina, 830
F.2d 1396, 1400 (7th Cir. 1987). The difference is
in the type of preclusion, not the fact of
preclusion. "[A] judgment on the merits precludes
relitigation of any ground within the compass of
the suit, while a jurisdictional dismissal
precludes only relitigation of the ground of that
dismissal . . . and thus has collateral estoppel
(issue preclusion) effect rather than the broader
res judicata effect that nowadays goes by the
name of claim preclusion." Okoro v. Bohman, 164
F.3d 1059, 1063 (7th Cir. 1999). Therefore, Perry
cannot escape the preclusive effect of Perry I by
the rote intonation that this is not a judgment
on the merits. The determination that Perry
lacked standing in Perry I precludes relitigation
of the same standing argument in Perry II.
Nor can the addition of new factual allegations
save Perry II by transforming the standing issue
into a different one than that decided in Perry
I. Perry conceded at oral argument that the
factual allegations included in Perry II did not
represent a change in circumstances between Perry
I and Perry II. Instead, they were facts known
when Perry I was brought, but that were never
included in the complaint. In Magnus, we rejected
a similar attempt to circumvent issue preclusion.
We held that where a prior suit is dismissed for
lack of jurisdiction, the inclusion of additional
factual allegations on the jurisdictional issue
will not avoid issue preclusion when those facts
were available at the time the original complaint
was filed. Only facts arising after the complaint
was dismissed--or at least after the final
opportunity to present the facts to the court--
can operate to defeat the bar of issue
preclusion. As the Magnus court recognized,
[u]nder a system such as that established by the
Federal Rules of Civil Procedure, which permits
liberal amendment of pleadings, it does not make
sense to allow a plaintiff to begin the same suit
over and over again in the same court, each time
alleging additional facts that the plaintiff was
aware of from the beginning of the suit, until it
finally satisfies the jurisdictional
requirements.
Id. at 1401. That is precisely what Perry
attempted here. We affirm the dismissal of Perry
II, although on grounds of issue preclusion
rather than for lack of standing.
Finally, we are disturbed at the sequence of
events in this case which resulted in a waste of
judicial resources that should have been apparent
from the inception. Perry II was nothing more
than a reargument of the same contentions
rejected in Perry I, that were barred by issue
preclusion, and that duplicated the arguments
simultaneously being made in this court on appeal
from Perry I. The subsequent appeal of Perry II
as well only worsened the situation. Perry
withdrew all arguments in Perry II except for the
arguments that were identical to the Perry I
appeal. This withdrawal, however, did not come
until his reply brief, thus forcing opposing
counsel to respond and this court to review
arguments which Perry did not intend to pursue.
This abuse of the judicial process is
impermissible. Any similar behavior in the future
shall result in the imposition of sanctions.
For the reasons stated above, the decision of
the district court in Perry I is affirmed in part
and reversed in part, and the case remanded for
further proceedings consistent with this opinion.
The decision in Perry II is affirmed.
/1 We do not hold that the Fourth Amendment seizure
analysis is an all-or-nothing proposition.
Certainly, if the defendants had discovered
incriminating evidence, they could have seized it
even though the eviction order was stayed, and
even though they could not seize any other
property.
/2 The argument that the defendants needed to seize
the firearms because evictions are inherently
volatile situations is patently unsupported by
the facts here. The deputies had been at the
apartment for three hours before they even
removed the firearms from the premises. At that
time, the eviction had been called off. There are
no allegations that Perry had to be restrained or
was otherwise violent during the three hours they
were there. Those facts are insufficient to
support a motion to dismiss on grounds of
qualified immunity premised on the danger of the
situation.
Posner, Circuit Judge, concurring in part and
dissenting in part. My disagreement is limited to
the rejection of the officers’ defense of
qualified immunity. The Cook County Sheriff’s
police have a practice, which seems sensible and
is supported by the only case I have found
dealing with such a practice, Boone v. State, 383
A.2d 412, 419 (Md. App. 1978), of seizing any
weapons found during the course of an eviction at
which police are present, even if there is no
reason to believe that the weapons are contraband
or evidence of crime. The seizure is temporary;
the owner is entitled to their return; and since
eviction can be an emotional experience, see,
e.g., Mellott v. Heemer, 161 F.3d 117, 122-23 (3d
Cir. 1998); Parrott v. Wilson, 707 F.2d 1262,
1265-66 (11th Cir. 1983)--in the second of these
cases the eviction led to gunfire and death--and
placing a cache of weapons along with the rest of
the tenant’s property on the sidewalk can be an
invitation to thieves, the temporary
sequestration of the tenant’s guns by the police
is a justifiable measure of public safety. I do
not understand the majority to disagree with this
proposition, and it follows a fortiori that the
police would be protected by the doctrine of
official immunity from any suit for damages based
on such a seizure. Of course the police who
seized Perry’s weapons could not reasonably have
believed that they had a right to seize any and
all property found on a tenant’s premises in the
course of an eviction. But in an analysis of
their immunity defense the only question would be
whether they could reasonably have believed
themselves entitled to seize weapons found there.
Any idea that because the police can’t seize
everything they find, they can’t seize anything
they find, would be not only a logical error but
also a violation of the principle that a claim of
immunity is defeated not by invoking generalities
but by showing that the specific conduct
complained of had been determined to be unlawful
before the defendants acted, so that they were on
clear notice of the unlawfulness of the conduct.
E.g., Wilson v. Layne, 526 U.S. 603, 614-15
(1999); Anderson v. Creighton, 483 U.S. 635, 639-
41 (1987); Greenberg v. Kmetko, 922 F.2d 382, 384
(7th Cir. 1991).
The wrinkle here is that the police learned
during the course of the eviction that it had
been stayed yet took the weapons anyway. It is
arguable, however, that the need for a "cooling
off" period remained and that it would have been
imprudent for the police, having begun to collect
the weapons preparatory to removing them, to
return them to Mr. Perry and then, as it were,
turn their backs to him and leave. It is not a
conclusive argument, but it is not so off the
wall as to excuse the plaintiff, if he wants to
argue that no reasonable police officer could
rely on such an argument, to present some case
authority rejecting it. This he has not done and
could not do. It is true that when the
constitutional violation is patent, the defense
of immunity can be rejected without case
authority. Burgess v. Lowery, 201 F.3d 942, 944-
45 (7th Cir. 2000); Anderson v. Romero, 72 F.3d
518, 526-27 (7th Cir. 1995); Eberhardt v.
O’Malley, 17 F.3d 1023, 1028 (7th Cir. 1994);
McBride v. Village of Michiana, 100 F.3d 457, 460
(6th Cir. 1996); Buonocore v. Harris, 65 F.3d
347, 356-57 (4th Cir. 1995). The violation might
be so patent that no one had ever committed it or
sought to fight a suit complaining of it. But
that is not this case. The majority opinion
misses the point when it says that "the argument
that the defendants needed to seize the firearms
because evictions are inherently volatile
situations is patently unsupported by the facts
here." If, as this passage could be read to
concede, evictions are indeed inherently
volatile, then prudence would justify the seizure
of weapons even if the tenant did not appear to
be violent. At least the argument that it would
is not so ridiculous that it can be rejected on
the basis of "basic Fourth Amendment law." What
the majority calls "basic Fourth Amendment law"
is merely the generalities of Fourth Amendment
doctrine; and general principles do not decide
immunity issues, as the Supreme Court made clear
in the Wilson and Anderson decisions that I
cited.
We ought to use some imagination, and put
ourselves in the place of these police officers,
not learned in the law, when the eviction was
called off. Could it really be said that they
should have known that the Constitution
prohibited them from temporarily sequestering
Perry’s alarming pile of weaponry? I think not.
The defendants are entitled to immunity from the
plaintiff’s claim of damages, and I would
therefore affirm the dismissal of both suits.