In the United States Court of Appeals For the Seventh Circuit
No. 00-4207
Robert Anthony Johnson,
Plaintiff-Appellant,
v.
City of Evanston, Illinois, et al.,
Defendants-Appellees.
Appeal from the United
States District Court for the Northern District of Illinois, Eastern Division.
No. 00 C 4659--William J.
Hibbler, Judge.
Submitted April 23,
2001--Decided May 11, 2001
Before Easterbrook, Manion,
and Diane P. Wood, Circuit Judges.
Easterbrook, Circuit
Judge. Robert Johnson took his car to
Doc Able's Auto Clinic in Evanston to check a leak. On being told that costly
repairs were necessary, he instructed the Clinic not to do the work and set off
to retrieve his car. When he arrived, however, the Clinic told him that the
work had been done anyway and that the bill was more than $950. Johnson refused
to pay, and the Clinic allowed him to drive home after the parties agreed to
resolve their dispute in court. Five days later, however, the Clinic had
someone steal Johnson's car. (We use the word "steal" advisedly.
Illinois does not permit auto mechanics to "repossess" cars, as
secured lenders may do under the Uniform Commercial Code. See Leavitt v.
Charles R. Hearn, Inc., 19 Ill. App. 3d 980, 312 N.E.2d 806 (1st Dist. 1974).)
With the vehicle in its possession, the Clinic phoned Johnson and demanded
$1,937 for repairs and "storage fees" as the price of its return.
Hopping mad, Johnson called
the police--who took the Clinic's side. They refused to prosecute the Clinic or
any of its employees, refused to accept Johnson's written complaint, and, to
top it off, forbade the Clinic to return Johnson's car. After the Clinic's
owner came to doubt his legal authority to retain the car, and offered to hand
it back to Johnson pending judicial resolution of the dispute about the bill,
Officer Susan Trigourea told Johnson that he could not remove his car from the
Clinic's premises. With the support of her superior, Sergeant Clarence Fulce,
Trigourea told both Johnson and the Clinic that the police department was
itself taking custody of the car, which it would leave with the Clinic for
safekeeping. Trigourea and Fulce also prohibited Johnson from removing his
belongings from the car, even though the Clinic could not possibly have a lien
on the baby stroller, work uniforms, and military documents in the vehicle.
There matters have stood since July 2000: the Clinic holds the car as the agent
of the Evanston Police Department.
So, at least, the complaint
in this action under 42 U.S.C. sec. 1983 contends, and we must assume that all
of its allegations are factual. The City, the Clinic, and both officers are
named as defendants, and Johnson wants his car back plus damages for loss of
its use. But the district court dismissed the complaint under Fed. R. Civ. P.
12(b)(6). The only analysis in the court's order reads: "[E]ven if [the
police] in fact seized the car, they seized it from [the Clinic], not from
[Johnson]. Plaintiff has failed to state a Federal cause of action against any
of the Defendants." The court added that the amount in controversy is less
than $75,000 so that federal jurisdiction is lacking-though there is no
amount-in-controversy requirement for litigation under sec.1983 (see 28 U.S.C.
secs. 1331, 1343(a)(3)) and Johnson did not seek to invoke the diversity
jurisdiction. Whether any state-law claims come within the supplemental
jurisdiction under 28 U.S.C. sec. 1367 is a subject we need not address, for on
appeal Johnson has abandoned his claim against the Clinic. The only question
now on the table is whether the complaint states a claim under sec.1983 against
the City and the two officers--which it does.
Johnson alleges that the
police have seized his property without probable cause, indeed without a
scintilla of justification. That someone else had stolen his property before
the police glommed onto it hardly justifies its perpetual loss. If the police
were using the car as evidence in a prosecution of whoever stole it (or to
prosecute the Clinic for being the recipient of stolen property), then Johnson
might have to wait a while. But if the facts are as the complaint alleges, then
the police have simply replaced the thief as the holder of stolen property,
without any colorable claim of authority, and thus have violated Johnson's
rights--by seizing his property unreasonably, and by retaining it without due
process of law. The police do not contend that Johnson has a remedy under state
law, for the state courts might supply whatever process is due for wrongful
detention of property. See Lujan v. G&G Fire Sprinklers, Inc., No. 00-152
(U.S. Apr. 17, 2001); Parratt v. Taylor, 451 U.S. 527 (1981). Instead the
police and the City contend that Johnson has no remedy, period. That just makes
Johnson's constitutional point. The Constitution's requirements are as
applicable to the police when they choose sides in a dispute among citizens as
when they seize evidence for use in criminal prosecutions. See, e.g., Soldal v.
Cook County, 506 U.S. 56 (1992); Guzell v. Hiller, 223 F.3d 518 (7th Cir.
2000).
Many steps in Johnson's
narration entail no federal claim. For example, the Clinic's acquisition of his
car from the public streets may violate Illinois law, but the Clinic did not
act under color of state law and so cannot be liable for this deed under
sec.1983. See Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978). The police are
state actors (everything they did or did not do was official business), but
Johnson lacks standing to complain about their refusal to prosecute the Clinic.
See Linda R.S. v. Richard D., 410 U.S. 614 (1973); Leeke v. Timmerman, 454 U.S.
83 (1981); Allen v. Wright, 468 U.S. 737 (1984). More generally, any failure by
the police to protect Johnson from the Clinic, perhaps by ordering the Clinic
to release his car, raises issues under state rather than federal law; as a
rule, the Constitution does not require states to protect citizens from each
other. See DeShaney v. Winnebago County Department of Social Services, 489 U.S.
189 (1989); Archie v. Racine, 847 F.2d 1211 (7th Cir. 1988) (en banc). (Johnson
does not contend that the police gave him less protection than persons of
another race or sex; to the contrary, he alleges that the police implemented a
policy of Evanston to back up merchants' claims without regard to the facts.)
According to Johnson's complaint, however, the police did not remain passive;
they intervened and took control of his car. That seizure had to be reasonable
under the fourth amendment, and a condition to the exercise of continuing
public dominion over private property is the offer of a hearing to determine
who is in the right.
It is not dispositive that
the police seized the car from the Clinic rather than Johnson. This would be
plain enough if the police had seized the swag from a bank robber; they could
not defeat a claim by the bank for the return of its money by observing that
the thief laid hands on the cash first. Likewise Evanston's police may not
detain a person indefinitely just because Chicago's police made the arrest and
turned the suspect over. Each day, indeed each hour, of additional detention
must be reasonable, and within 48 hours of any arrest the suspect is entitled
to a hearing to determine whether that condition is satisfied. Riverside County
v. McLaughlin, 500 U.S. 44, 57 (1991); Gerstein v. Pugh, 420 U.S. 103 (1975).
What is true of persons is true of property too, although the timetable need
not be so abbreviated. Indefinite public detention of funds can violate the
Constitution when it deprives the owner of interest on the money. See Webb's
Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155 (1980). Just as interest
represents the time value of money, so the cost of alternative transportation
represents the time value of an automobile. Deprived of his own car, Johnson
had to obtain transportation from another source. The expense of doing this,
whether by renting a car or by buying a new one (in the expectation of
reselling it when the first is returned), is the value of the lost use, the
implicit rental value of the vehicle. Evanston's police force could deprive
Johnson of that value only if the deprivation was reasonable at the outset and
process was available to test the length of (and continued justification for)
the deprivation. So far as Johnson's complaint reveals, however, neither the
reasonableness requirement nor the due-process requirement has been satisfied.
Because Johnson alleges that
the officers carried out Evanston's policy, the City is not entitled to
dismissal under Monell v. New York Department of Social Services, 436 U.S. 658
(1978). How much of the claim can survive a motion for summary judgment remains
to be seen, for discovery lies ahead. The judgment is reversed, and the case is
remanded for further proceedings consistent with this opinion.