dissenting:
A person on leased premises at the invitation of the tenant is exempt from prosecution for criminal trespass to land. (See People v. Flanagan (1985), 133 Ill. App. 3d 1, 5; Ill. Rev. Stat. 1991, ch. 38, par. 21 — 3(c); see also City of Quincy v. Daniels (1993), 246 Ill. App. 3d 792, 795; Karow v. Student Inns, Inc. (1976), 43 Ill. App. 3d 878, 883.) Contrary to the view taken by the appellate court, this rule is not limited to migrant workers. It applies to any person, whether a migrant worker or otherwise, invited on the land by a tenant. See People v. Flanagan, 133 Ill. App. 3d at 4.
The majority does not take issue with these principles. Rather, it contends they are inapplicable because the invitations here were invalid. They were invalid, according to the majority, because they violated the provisions of the tenants’ leases. 162 Ill. 2d at 555-56.
Although this contention has superficial appeal, it has no support in the law. No one would dispute that a landlord has the right to place some restrictions on his tenants’ right to have guests on the premises. That right, however, is not enforceable through criminal prosecution. If a tenant agrees to the landlord’s restrictions as a condition of the lease, the restrictions have the force of contract, and their violation may place the tenant in breach, subjecting him to eviction. In such a case, the forcible entry and detainer statute (Ill. Rev. Stat. 1991, ch. 110, par. 9 — 101 et seq.) would provide the sole means for settling the dispute. The criminal trespass law could not be invoked. See People v. Evans (1987), 163 Ill. App. 3d 561, 565.
If a tenant cannot be criminally prosecuted for violation of the terms of a lease, I fail to see how we can make the lease grounds for criminal prosecution of anyone else. To hold otherwise is tantamount to finding that private parties have the right to alter the criminal law through contractual agreements. This is manifestly impermissible. If a landlord could use lease provisions to restrict what constitutes an "invitation” within the meaning of the law, he would have the power to defeat the very purpose of section 21 — 3(c) of the Criminal Code of 1961 (Ill. Rev. Stat. 1991, ch. 38, par. 21 — 3(c)). The statute would be rendered a nullity.
No matter how strenuously the landlord objected to the presence of the plaintiffs in this case, the fact remains that they were invited by the tenants of the complex to be there. Nothing in the law of criminal trespass gave the landlord the right to nullify that invitation. As a result, the police had no grounds to arrest plaintiffs or to threaten to arrest them for criminal trespass to land.
An individual’s right to be free from unlawful arrest and imprisonment unquestionably implicates a liberty interest protected by the Federal Constitution, the violation of which may give rise to a cause of action under 42 U.S.C. § 1983 (1988). (See Motes v. Myers (11th Cir. 1987), 810 F.2d 1055, 1059.) To recover under that statute, a plaintiff must show that the violation was committed by a defendant acting under color of State law. (Jones v. Gutschenritter (8th Cir. 1990), 909 F.2d 1208, 1211.) This statutory color-of-State-1 aw requirement is satisfied where the offending conduct meets the State-action requirement of the fourteenth amendment (U.S. Const., amend. XIV). Lugar v. Edmondson Oil Co. (1982), 457 U.S. 922, 935 n.18, 73 L. Ed. 2d 482, 494 n.18, 102 S. Ct. 2744, 2752 n.18.
In concluding that there was no State action here, the majority mistakenly relies on the language of Blum v. Yaretsky (1982), 457 U.S. 991, 73 L. Ed. 2d 534, 102 S. Ct. 2777, which involved a due process challenge to the decision of private nursing homes to discharge or transfer Medicaid patients. Although the Supreme Court rejected that challenge, it expressly distinguished the situation from those cases where the defendant is a private party whose conduct has received the imprimatur of the State or where private motives have triggered the enforcement of State laws by governmental officials who are themselves named as defendants. (Blum, 457 U.S. at 1003-04, 73 L. Ed. 2d at 546, 102 S. Ct. at 2785.) In such cases, the analysis is more straightforward. To meet the State-action requirement, a plaintiff must show that the person charged with the deprivation is a State official or has acted together with or obtained significant aid from State officials, or that the conduct at issue is otherwise chargeable to the State. Motes, 810 F.2d at 1058.
The majority compounds its error by misapprehending the nature of the offending conduct. The majority focuses on the practice of putting persons’ names on a "no trespass” list, but this dispute involves far more than that. The real basis for plaintiffs’ challenge is the abuse of the criminal trespass statute to assist the landlords in managing their property.
In the case before us, State officials, namely, the Champaign police, were directly involved in the deprivation charged by plaintiffs. Although the police may not have formulated the scheme to keep plaintiffs and others off the property, they are the ones who enforced that scheme by arresting and threatening to arrest persons invited onto the premises by the tenants. As previously noted, such arrests were unlawful. The United States Supreme Court has long held that police officers who act unlawfully in the course of their duties are subject to liability under 42 U.S.C. § 1983. Monroe v. Pape (1961), 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473.
The unlawful arrests and threat of arrests were not sporadic or isolated events. To the contrary, the record indicates that the police and the landlords were engaged in a joint enterprise to systematically rid the premises of those they regarded as undesirable. The landlords decided whom they wanted to exclude, and the police used their arrest powers to exclude them.
Because the landlords were jointly engaged with the police in the unlawful use of the criminal trespass statute, they can be characterized as having acted under color of State law and are subject to liability under 42 U.S.C. § 1983 (1988). (See Lugar, 457 U.S. at 941-42, 73 L. Ed. 2d at 498, 102 S. Ct. at 2756; Howerton v. Gabica (9th Cir. 1983), 708 F.2d 380, 384-85 (landlords deemed to have acted under color of State law where they repeatedly requested aid by police to effect an eviction, and the police intervened at every step).) The City of Champaign is also subject to liability because the police program to aid the landlords through unlawful use of the criminal trespass statute can fairly be said, under the record now before us, to represent municipal policy. See Collins v. City of Harker Heights (1992), 503 U.S. 115, 120-22, 117 L. Ed. 2d 261, 270-71, 112 S. Ct. 1061, 1066.
Under established law, plaintiffs have thus advanced a cognizable claim under 42 U.S.C. § 1983 (1988) against the various defendants named in their amended complaint. By ruling otherwise, the majority eviscerates the statute and gives free rein to private landlords to substitute the coercive power of the police for the civil eviction remedies created by our General Assembly. Until today, the sole recourse for a landlord who disapproved of his tenant’s guests was to terminate the tenancy. Now, there is no longer a need to bother with civil process. The landlord can just call the police and have the tenant’s guests hauled away to jail. That the guests may include the father of the tenant’s children, or the tenant’s son, or some other family member is apparently of no consequence.
Such a result is as offensive as it is unprecedented. As much as we may sympathize with the need of property owners to protect their investments and insure that their tenants have a safe place to live, they have no more of a claim on the authority of the State than do their renters or the friends and relatives of their renters. Under the Federal Constitution it could not be otherwise.
Plaintiffs should be permitted to proceed with their action. I therefore dissent.
JUSTICE FREEMAN joins in this dissent.