Christensen, Anita v. County of Boone ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-4162
ANITA CHRISTENSEN and ROBERT ALTY,
Plaintiffs-Appellants,
v.
COUNTY OF BOONE, ILLINOIS, and EDWARD KRIEGER,
Defendants-Appellees.
____________
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 04 C 50219—Philip G. Reinhard, Judge.
____________
ARGUED DECEMBER 1, 2005—DECIDED MARCH 21, 2007
____________
Before EASTERBROOK, Chief Judge, and RIPPLE and
KANNE, Circuit Judges.
PER CURIAM. Anita Christensen and Robert Alty, an
unmarried couple and plaintiffs in this civil rights action,
allege that they have been stalked and harassed unjustifi-
ably by Edward Krieger, a Deputy Sheriff of Boone County,
Illinois. Specifically, they allege that Deputy Krieger
interfered with the couple’s constitutional right to be
free from unreasonable searches and seizures and their
right to intimate association. They further allege that the
Deputy’s employer, Boone County, was responsible for the
Deputy’s actions. The complaint also contains a pendent
2 No. 04-4162
state law claim asserted solely against Deputy Krieger
for intentional infliction of emotional distress.
Deputy Krieger and Boone County filed a motion to
dismiss for failure to state a claim upon which relief can be
granted. See Fed. R. Civ. P. 12(b)(6). The district court
granted the defendants’ motion; it held that the plaintiffs
had failed to plead either a cognizable constitutional
violation or, with respect to the state law count, the
elements of a common law tort. The plaintiffs now appeal
this ruling. We agree with the district court that the
Fourth Amendment claim is meritless and hold that it
was properly dismissed. With respect to the claim based
on the right to intimate association and the claim alleging
intentional infliction of emotional distress, we believe that
the pleading requirements of Rule 8 have been satisfied
but that the claim fails on the merits. We reinstate the
plaintiffs’ claims under state law. Accordingly, we affirm
in part and reverse in part the judgment of the district
court.
I. BACKGROUND
A. Facts
Because this case comes to us from a dismissal under
Rule 12(b)(6), we must accept all well-pleaded allegations
in the complaint as true and draw all reasonable infer-
ences in favor of the plaintiffs. See Marshall-Mosby v.
Corporate Receivables, Inc., 205 F.3d 323, 326 (7th Cir.
2000).
Robert Alty is a police officer for the City of Belvidere,
Illinois. In 1998 he arrested a driver for operating a
vehicle while under the influence of alcohol. That driver
turned out to be a friend or relative of Edward Krieger, a
Deputy Sheriff of Boone County, Illinois. This incident
resulted in animosity between the two officers that
No. 04-4162 3
culminated in a face-to-face altercation at some point in
2001. According to the allegations of the complaint, after
that incident, Deputy Krieger engaged in “a pattern of on-
duty conduct designed to harass, annoy, and intimidate”
Officer Alty and his girlfriend, Anita Christensen. Specifi-
cally, the couple alleges that Deputy Krieger repeatedly
followed them, both individually and with each other,
while they drove on Boone County streets; parked his
squad car in front of Ms. Christensen’s place of employ-
ment in order to watch her; and sat in his police car
outside of businesses that the plaintiffs were visiting in
an effort to cause the couple “difficulties with the propri-
etors of such establishments.”
Ms. Christensen and Officer Alty claimed that Deputy
Krieger’s actions were performed under color of state law
and deprived them of their rights to privacy, freedom of
association, freedom from unreasonable searches and
seizures and “substantive due process rights under the
First, Fourth, Fifth, and Fourteenth Amendments.” The
complaint further alleges that Officer Alty and Ms.
Christensen had filed numerous complaints with Deputy
Krieger’s supervisors at the Boone County Sheriff ’s
Department, but that the Department had not taken any
action to correct the situation. Finally, the complaint
alleges that Deputy Krieger’s conduct constituted the
intentional infliction of emotional distress under Illinois
law.
B. District Court Proceedings
The district court dismissed the plaintiffs’ action for
failure to state a claim upon which relief could be granted.
See Fed. R. Civ. P. 12(b)(6). First, with respect to the
plaintiffs’ Fourth Amendment claim, the court concluded
that the complaint failed to identify any legitimate ex-
pectation of privacy that had been invaded by Deputy
4 No. 04-4162
Krieger. Second, the court held that the plaintiffs’ “inti-
mate association” claim failed because they had not alleged
any actual interference with their relationship. In the
court’s view, the plaintiffs’ assertions of feeling annoyed
and harassed did not allege an impact on the relation-
ship itself. Finally, the court dismissed the plaintiffs’
intentional infliction of emotional harm claim because they
had not pleaded a severe emotional injury and because
Deputy Krieger’s behavior, as described in the complaint,
was “nowhere near to being extreme or outrageous as that
element of the tort is defined by Illinois courts.”
II. DISCUSSION
We must decide de novo whether the plaintiffs’ com-
plaint states a claim upon which relief could be granted.
See Williams v. Seniff, 342 F.3d 774, 792 (7th Cir. 2003).
A motion under Rule 12(b)(6) challenges the sufficiency
of the complaint, and dismissal of an action under this
rule is warranted only if “no relief could be granted under
any set of facts that could be proved consistent with the
allegations.” DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir.
2000) (internal quotation marks omitted). Under the
notice pleading regime of the Federal Rules of Civil
Procedure, the plaintiffs’ complaint must contain only “a
short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Apart
from several limited exceptions, a “short and plain state-
ment” exists when the complaint pleads a “bare minimum
[of] facts necessary to put the defendant on notice of the
claim so that he can file an answer.” Higgs v. Carver, 286
F.3d 437, 439 (7th Cir. 2002); see also Kolupa v. Roselle
Park Dist., 438 F.3d 713, 714 (7th Cir. 2006) (“It is enough
to name the plaintiff and the defendant, state the nature
of the grievance, and give a few tidbits (such as the date)
that will let the defendant investigate. A full narrative is
No. 04-4162 5
unnecessary.”). The Supreme Court also has instructed
that, in civil rights cases alleging municipal liability, a
federal court may not apply a heightened pleading stan-
dard more stringent than the usual pleading require-
ments of Rule 8(a). See Leatherman v. Tarrant County,
507 U.S. 163, 165 (1993).
Together, these rules ensure that claims are determined
on their merits rather than on pleading technicalities. See
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002)
(“The liberal notice pleading of Rule 8(a) is the starting
point of a simplified pleading system, which was adopted
to focus litigation on the merits of a claim.”). For this
reason, we do not require “an exhaustive recitation of the
facts or elements” of a plaintiff ’s claim. Lekas v. Briley,
405 F.3d 602, 606 (7th Cir. 2005). Indeed, “[a]ll the
complaint need do to withstand a motion to dismiss for
failure to state a claim is outline or adumbrate a violation
of the statute or constitutional provision upon which the
plaintiff relies and connect the violation to the named
defendants.” Brownlee v. Conine, 957 F.2d 353, 354 (7th
Cir. 1992) (internal citations and quotation marks omit-
ted). Rule 8(a)’s notice pleading standard applies to
pendant state law claims that are pleaded in federal court.
See, e.g., McDonald v. Household International, Inc., 425
F.3d 424, 427 (7th Cir. 2005).
A. Constitutional Violations
Within this liberal framework of notice pleading, the
plaintiffs seek to state a claim against Deputy Krieger and
Boone County under 42 U.S.C. §1983. In order to state a
claim under §1983, the plaintiffs must allege that a
government official, acting under color of state law,
deprived them of a right secured by the Constitution or
laws of the United States. Brokaw v. Mercer County, 235
6 No. 04-4162
F.3d 1000, 1009 (7th Cir. 2000); see also Gomez v. Toledo,
446 U.S. 635, 640 (1980). Here, the plaintiffs allege that
Deputy Krieger and Boone County violated the couple’s
Fourth Amendment right to be free from unreasonable
searches and seizures. The complaint also alleges that
the defendants deprived them of their right to associate
intimately without interference from the state, a right
they describe as a liberty interest protected by the Four-
teenth Amendment’s Due Process Clause. Deputy Krieger
and Boone County do not dispute that their alleged actions
were taken “under color of state law,” Brokaw, 235 F.3d
at 1009. Instead, the parties’ disagreement surrounds
whether the plaintiffs have alleged the violation of a
federal right. We shall address each constitutional claim
in turn.
1. Fourth Amendment
The plaintiffs’ first constitutional claim is covered by a
specific constitutional provision, the Fourth Amendment.
When the violation of a specific right is alleged, such a
claim “must be analyzed under the standard appropriate
to that specific [constitutional] provision.” County of
Sacramento v. Lewis, 523 U.S. 833, 843 (1998). The Fourth
Amendment protects “[t]he right of the people to be
secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” Only govern-
ment activity that constitutes either a “search” or a
“seizure” is regulated by the Fourth Amendment.
A search takes place when the state intrudes upon an
individual’s legitimate interest in privacy. See Katz v.
United States, 389 U.S. 347 (1967); see also California v.
Greenwood, 486 U.S. 35, 39 (1988). This expectation
must be one that society is willing to accept. See Katz,
389 U.S. at 353. Furthermore, a plaintiff invoking the
No. 04-4162 7
Fourth Amendment must show that he has attempted to
keep the object of the search private. Id. at 351 (“[T]he
Fourth Amendment protects people, not places. What a
person knowingly exposes to the public, even in his own
home or office, is not a subject of Fourth Amendment
protection.”); United States v. Dunkel, 900 F.2d 105, 107
(7th Cir. 1990).
In the present case, the plaintiffs allege that Deputy
Krieger followed them in his squad car as they drove on
Boone County roads and sat outside businesses that the
couple patronized. This alleged behavior did not con-
stitute a Fourth Amendment search. Driving on public
streets is one of the activities during which a person does
not enjoy a legitimate interest in privacy. United States v.
Knotts, 460 U.S. 276, 281 (1983) (“A person traveling in
an automobile on public thoroughfares has no reasonable
expectation of privacy in his movements from one place
to another.”). Nor can individuals reasonably expect
privacy in the parking lot of a business. See Dunkel, 900
F.2d at 107. In observing the couple’s public movements,
Deputy Krieger did not conduct a search in violation of
the Fourth Amendment.
Nor were the plaintiffs ever “seized” within the meaning
of the Fourth Amendment. We recognize that, in certain
circumstances, a Fourth Amendment “seizure” may occur
when police intentionally restrict the freedom of a person
to move about in public. See Brower v. County of Inyo, 489
U.S. 593, 596 (1989). For example, if law enforcement
officers attempt to stop a fleeing suspect by forcing his
automobile off the road, they have conducted a seizure
for purposes of the Fourth Amendment. Id. at 597. This
type of seizure occurs, however, only if two conditions are
met. First, the officer must, through physical force or a
show of authority, “communicate[ ] to a reasonable person
that he [is] not at liberty to ignore the police presence and
8 No. 04-4162
go about his business.” Florida v. Bostick, 501 U.S. 429,
437 (1991) (internal quotation marks omitted); see also
United States v. Packer, 15 F.3d 654, 657 (7th Cir. 1994).
Second, when the officer’s encounter with the plaintiff is
nonphysical, the plaintiff must have submitted to the
show of authority to establish that a seizure has taken
place. See California v. Hodari D., 499 U.S. 621, 626
(1991) (“An arrest requires either physical force (as
described above) or, where that is absent, submission to
the assertion of authority.” (emphasis omitted)).
In light of these requirements, the theory that the
plaintiffs were “seized” when Deputy Krieger followed
them in his squad car is inconsistent with the allegations
of the complaint. The alleged actions by Deputy Krieger
were nonphysical. Therefore, to be a seizure, the Deputy
must have communicated reasonably to the plaintiffs that
they were not free to move. We cannot hypothesize from
the allegations contained in the complaint a scenario in
which Deputy Krieger’s actions—the following, the stalk-
ing in the parking lot—would lead reasonable persons to
feel that they had to stay where they were for fear of
force or arrest. See Driebel v. Milwaukee, 298 F.3d 622,
642 (7th Cir. 2002) (determining that a police station
employee was not seized when he was ordered to work
overtime and “stand by” for three and one-half hours in the
police garage, because there was “no evidence suggesting
that he would have been prevented from leaving the
garage had he refused to obey”). Indeed, the complaint
asserts that Deputy Krieger followed the plaintiffs repeat-
edly, meaning that they continued to go about their daily
business in spite of being followed and watched. These
allegations cannot describe a Fourth Amendment “seizure”
because they tell us that the plaintiffs, in fact, did not
submit to whatever restriction on their freedom Deputy
Krieger attempted to impose. Id. (“A seizure occurs
No. 04-4162 9
only when a person submits to the show of lawful
authority . . . .”).1
Nor do the plaintiffs’ other allegations state a claim
under the Fourth Amendment. Ms. Christensen com-
plained of being watched by Deputy Krieger as she
went about her duties as an employee of a local gas
station. At these moments, however, she did not enjoy a
legitimate expectation of privacy. In her job at the gas
station, she appeared in plain view of the public, and
Deputy Krieger had no particular vantage point unavail-
able to the public generally. See United States v. Gonzalez,
348 F.3d 543, 547 (9th Cir. 2003) (holding that a hospital
employee caught on video in the mailroom of the hospital
enjoyed no legitimate expectation of privacy). Thus,
where Ms. Christensen’s job exposed her movements to
the public generally, the Fourth Amendment is no bar to
her being watched by police officers. See United States v.
Sandoval-Vasquez, 435 F.3d 739, 743 (7th Cir. 2006)
(holding that no search occurred when police officers
entered an open business); United States v. Tolar, 268 F.3d
530, 532 (7th Cir. 2001) (noting that a chain link fence
surrounding a business did not engender a reasonable
expectation of privacy in items visible through the fence).
1
As the Supreme Court has explained:
[A] Fourth Amendment seizure does not occur whenever
there is a governmentally caused termination of an
individual’s freedom of movement (the innocent pass-
erby), nor even whenever there is a governmentally
caused and governmentally desired termination of an
individual’s freedom of movement (the fleeing felon), but
only when there is a governmental termination of
freedom of movement through means intentionally
applied.
Brower v. County of Inyo, 489 U.S. 593, 596-97 (1989) (emphasis
in original).
10 No. 04-4162
Finally, the complaint describes an incident in which
Deputy Krieger searched a cell phone belonging to a friend
of Officer Alty to find out if the two recently had communi-
cated. Like the others, this incident cannot supply the
basis for a Fourth Amendment claim because Officer Alty
had no legitimate expectation of privacy in a cell phone
belonging to someone else. Rakas v. Illinois, 439 U.S. 128,
134 (1978) (“A person who is aggrieved by an illegal
search and seizure only through the introduction of
damaging evidence secured by a search of a third person’s
premises or property has not had any of his Fourth
Amendment rights infringed.”); Young v. Murphy, 90 F.3d
1225, 1236 (7th Cir. 1996) (“The right against unreason-
able searches and seizures is a personal right and gener-
ally may not be submitted on behalf of others.”). The
plaintiffs’ Fourth Amendment claims properly were
dismissed.
2. Intimate Association
The plaintiffs’ other constitutional claim asserts the
deprivation of a liberty interest in violation of the Four-
teenth Amendment’s Due Process Clause. More specifi-
cally, the couple asserts that Deputy Krieger’s conduct,
and the County’s tacit approval of that conduct, unjustifi-
ably impaired the plaintiffs’ fundamental right to as-
sociate intimately with one another. To assess this as-
sertion, we employ the basic framework for claims that
arise out of the substantive component of the Fourteenth
Amendment’s Due Process Clause. In doing so, we keep
in mind the Supreme Court’s admonition that the con-
cept of substantive due process must be expanded reluc-
tantly “ ‘because the guideposts for responsible decision-
making in this uncharted area are scarce and open-
ended.’ ” Washington v. Glucksberg, 521 U.S. 702, 720
(1997) (quoting Clark v. Harker Heights, 503 U.S. 115, 125
No. 04-4162 11
(1992)); see also University of Michigan v. Ewing, 474 U.S.
214, 225-26 (1985).
Our first step is to provide a “careful description” of the
interest said to have been violated. Doe v. City of Lafayette,
377 F.3d 757, 768 (7th Cir. 2004) (citing Glucksberg, 521
U.S. at 721). Then, we must determine whether that
interest is “fundamental”—that is, whether it is so deeply
rooted and sacrosanct that no amount of process would
justify its deprivation. Glucksberg, 521 U.S. at 720-21
(“[T]he Due Process Clause specially protects those
fundamental rights and liberties which are, objectively,
deeply rooted in this Nation’s history and tradition . . . .”
(internal quotation marks omitted)). Once we are satis-
fied that a fundamental right is at stake, we then deter-
mine whether the government has interfered “directly” and
“substantially” with the plaintiffs’ exercise of that right.
Zablocki v. Redhail, 434 U.S. 374, 386-87 & n.12 (1978).
Finally, if a fundamental right has been impaired, we
ask whether the governmental action can find “reason-
able justification in the service of a legitimate governmen-
tal objective,” or if instead it more properly is “character-
ized as arbitrary, or conscience shocking, in a constitu-
tional sense.” Lewis, 523 U.S. at 846-47.2
2
When, as in the present case, a plaintiff complains of abusive
executive action, this “conscience shocking” test determines
liability, rather than the traditional strict scrutiny standard used
to measure the constitutionality of legislative acts. See County of
Sacramento v. Lewis, 523 U.S. 833, 846-47 (1997) (clarifying
this distinction). The “shocks the conscience” standard works to
distinguish the due process guarantee from traditional standards
of tort liability, so that the Fourteenth Amendment does not
become a “ ‘font of tort law.’ ” Id. at 848 (quoting Paul v. Davis,
424 U.S. 693, 701 (1976)); see also Khan v. Gallitano, 180 F.3d
829, 836 (7th Cir. 1999) (denying constitutional claims because
(continued...)
12 No. 04-4162
In the present case, the plaintiffs invoke their constitu-
tional right to engage in “intimate association.” In more
concrete terms, the plaintiffs claim that they should have
been free from Deputy Krieger’s interference with their
choice to enter into a non-marital romantic relation-
ship. The Supreme Court frequently has recognized the
constitutional stature of the freedom to enter into and
carry on certain intimate associations. In Roberts v. United
States Jaycees, 468 U.S. 609 (1983), the Court delivered a
comprehensive discussion of this right. At the outset, the
Court observed that, in prior cases, it had described the
freedom to associate in “two distinct senses.” Id. at 617. In
the first line of cases, Roberts explained, “the Court has
recognized a right to associate for the purpose of engag-
ing in those activities protected by the First Amendment—
speech, assembly, petition for the redress of grievances,
and the exercise of religion.” Id. at 618. In the second set
of decisions, “the Court has concluded that choices to
enter into and maintain certain intimate human relation-
ships must be secured against undue intrusion by the
State because of the role of such relationships in safe-
guarding the individual freedom that is central to our
constitutional scheme.” Id. at 617-18. In this second
category of decisions, “freedom of association receives
protection as a fundamental element of personal liberty”
under the Due Process Clause. Id. at 618; see also Mont-
gomery v. Stefaniak, 410 F.3d 933, 937 (7th Cir. 2005).
(...continued)
“[t]he defendants’ tortious acts, which subject them to possible
liability under state law, are not so extreme as to shock the
conscience”). Whether something less than intentional conduct
“shocks the conscience” varies depending on the context of the
alleged violation. Id. at 850 (discussing how a prison official’s
“deliberate indifference” may shock the conscience when he
denies a prisoner medical treatment, but not when he uses force
upon a prisoner to restore order).
No. 04-4162 13
The plaintiffs’ relationship, as they assert, fits best
within the second Roberts category and, therefore, must
be analyzed under the Due Process Clause as a liberty
interest, rather than as a relationship formed for first
amendment purposes.3 Intimate associations protected by
the Due Process Clause, Roberts said, “have played a
critical role in the culture and traditions of the Nation by
cultivating and transmitting shared ideals and beliefs;
they thereby foster diversity and act as critical buffers
between the individual and the power of the State.”
Roberts, 468 U.S. at 618. Additionally, these relation-
ships bestow “the ability independently to define one’s
identity that is central to any concept of liberty.” Id.
at 619.
In Lawrence v. Texas, 539 U.S. 558 (2003), the Court
held that private homosexual relationships are a form of
intimate conduct protected as a liberty interest against
unreasonable public interference. This is so, the Court
held, whether or not the participants are married. It is
impossible to see how an unmarried heterosexual couple
in a long-term relationship could receive less protection.
We therefore conclude, on the authority of Lawrence, that
the plaintiffs’ relationship is a form of “intimate associa-
tion” protected by the Constitution. So we had assumed in
Montgomery, 410 F.3d at 938.4
3
Indeed, the allegations of the plaintiffs’ complaint make clear
that the relationship between Ms. Christensen and Officer Alty
is not one entered into for the purpose of “speech, assembly,
petition for the redress of grievances, [or] the exercise of reli-
gion.” Roberts v. United States Jaycees, 468 U.S. 609, 618 (1983).
4
See also, e.g., Anderson v. City of Lavergne, 371 F.3d 879, 882
(6th Cir. 2004) (a couple is engaged in a constitutionally-pro-
tected intimate association when they were living together, were
romantically and sexually involved, and were monogamous);
(continued...)
14 No. 04-4162
We next must consider whether Deputy Krieger inter-
fered “directly” and “substantially” with the plaintiffs’
right to associate intimately. Zablocki, 434 U.S. at 387.
The Constitution prevents fundamental rights from being
aimed at; it does not, however, prevent side effects that
may occur if the government is aiming at some other
objective. That much is clear from Califano v. Jobst, 434
U.S. 47 (1977). A federal disability-benefits program cut off
support when beneficiaries married. The Court held
that this does not violate the Constitution, even though it
could be seen as a penalty on marriage (especially so
when both spouses are disabled), because it reflects a
view that one spouse usually supports the other. The
program’s incidental effect on marriage when both spouses
are disabled, the Court held, differs from the sort of
penalty that occurs when a law is designed to penalize
the fundamental interest. Cf. Personnel Administrator of
Massachusetts v. Feeney, 442 U.S. 256, 279 (1979) (a
government intends to achieve a particular result only
when the law has been adopted because of, rather than
in spite of or with indifference to, that result).
This is why being fired from a public job (after any
hearing that may be required) does not create constitu-
tional difficulties if it turns out that the ex-employee
becomes moody and makes the family miserable; like-
wise the spouse of someone run over by a garbage truck
may have a loss-of-consortium claim under state law but
(...continued)
Wilson v. Taylor, 733 F.2d 1539, 1544 (11th Cir. 1984). But cf.
Michael H. v. Gerald D., 491 U.S. 110 (1989) (father of a child
born from an adulterous relationship is not constitutionally
entitled to parental rights when the mother is still in a lawful
marriage and that couple chooses to raise the child as its own);
Marcum v. McWhorter, 308 F.3d 635, 640-41 (6th Cir. 2002)
(an adulterous relationship is not an intimate association).
No. 04-4162 15
cannot invoke principles of substantive due process.
Defamation by a public official, not itself a violation of the
Constitution, see Paul v. Davis, 424 U.S. 693 (1976), does
not turn into a constitutional tort if the defamed party
becomes impotent or loses the respect of his children. In
these situations, and many others, the effect on intimate
association is incidental to the defendant’s activities.
The district court dismissed the plaintiffs’ intimate-
association claim because, in its view, “[t]he alleged
conduct of [Deputy] Krieger simply does not rise to the
level of preventing plaintiffs from having a meaningful
relationship.” To the extent that the district court de-
manded a more complete factual narrative in the com-
plaint, it required more than is appropriate under Fed. R.
Civ. P. 8(a). The plaintiffs’ complaint alleges that Deputy
Krieger acted “with the intent to cause Plaintiffs harm
in their employment, as well as in their relationships
with various businesses in Boone County, and finally,
with each other” (emphasis added). It then went on to
allege that Deputy Krieger’s actions, in fact, “interfered
with the Plaintiffs’ rights to privacy [and] their right to
freedom of association.” These allegations suffice to put
the defendants on notice of the plaintiffs’ grievance.
We need not decide whether the complaint’s allega-
tions about Deputy Krieger’s motive or objective are
sufficient substantively, because the adverse consequences
of his actions are not sufficiently serious. Official conduct
that represents an abuse of office (as opposed to, say, the
implementation of a statutory duty) violates the sub-
stantive component of the due process clause only if it
“ ‘shocks the conscience.’ ” Russ v. Watts, 414 F.3d 783, 789
(7th Cir. 2005) (quoting Lewis, 523 U.S. at 846-47). In
Lewis the Court held that a death from a high-speed
pursuit does not shock the judicial conscience even on the
assumption that the pursuit was unnecessary and an
arrest could have been effected in some other way. The
16 No. 04-4162
Court stated that “only the most egregious” conduct may
be condemned under its approach. 523 U.S. at 846.
Watching people from a squad car is very far indeed
from “the most egregious” conduct in which a deputy
sheriff can engage. Deputy Krieger did not invade their
bedroom or commit mayhem. Plaintiffs recognized who
was trailing them. Thus even if Deputy Krieger’s presence
was ominous, plaintiffs had the security of knowing
where to turn for redress if Deputy Krieger should decide
to take more aggressive steps. They could have sought a
restraining order from state court—yet we know from
Castle Rock v. Gonzales, 545 U.S. 748 (2005), that, even
had such an order been issued and ignored, state rather
than federal courts would be the right forum for enforce-
ment.
Lewis calls for judicial modesty in implementing a
federal program of constitutional torts that lie outside
any specific clause of the Constitution. A modest role
means leaving to ordinary tort litigation conduct of the
sort in which Deputy Krieger is alleged to have engaged.
Plaintiffs say that Deputy Krieger’s conduct is con-
stitutionally obnoxious because it is harmful yet unjusti-
fied by any legitimate governmental interest. That’s
just another way to say that the conduct is tortious, but
Lewis holds that substantive due process does not
replicate state tort law. 523 U.S. at 848-49. The language
of “legitimate governmental interests” summons up the
rational-basis inquiry under the equal protection clause,
yet plaintiffs have not advanced a class-of-one (or class-of-
two) claim under the equal protection clause. See Village
of Willowbrook v. Olech, 528 U.S. 562 (2000); Lauth v.
McCollum, 424 F.3d 631 (7th Cir. 2005). Equal-protection
analysis must be kept distinct from substantive claims
under the Due Process Clause.
No. 04-4162 17
Asking whether the defendant had a “legitimate govern-
mental interest” not only would depart from the “most
egregious conduct” inquiry under Lewis but also would go
far toward constitutionalizing state law, which Lewis
said must not happen. As the complaint describes events,
Deputy Krieger was acting outside the scope of his duties,
disreputably and shamefully. But it is established that a
violation of state law does not automatically violate the
federal Constitution too. See Archie v. Racine, 847 F.2d
1211 (7th Cir. 1988) (en banc) (collecting cases). It is
essential to recognize a category (a large category) of acts
that offend state law without offending the Constitution
too. This is another point that Lewis made. See 523 U.S.
at 848-49 (conscience-shocking conduct is a very small
portion of the misbehavior actionable under tort law).
In sum, the complaint includes enough descriptive
matter to show that the claim is not sound under federal
law.
3. Municipal Liability
Because we have determined that all of plaintiffs’ claims
under federal law were properly dismissed, there can be
no §1983 liability for Boone County either.
B. The State-Law Tort Claim
Finally, we must decide whether the district court
properly dismissed the plaintiffs’ state-law tort claim.
Illinois law recognizes the tort of intentional infliction of
emotional distress, which was pleaded by the plaintiffs in
Count III of their complaint. See McGrath v. Fahey, 533
N.E.2d 806, 809 (Ill. 1988). Among other requirements, a
plaintiff ’s emotional distress must be “severe,” and the
defendant’s conduct “extreme and outrageous,” to give rise
18 No. 04-4162
to liability for this tort. See Public Fin. Corp. v. Davis, 360
N.E.2d 765, 767-68 (Ill. 1976).
In the district court’s view, the plaintiffs’ tort claim
failed because the complaint did not allege that Deputy
Krieger’s conduct was “extreme and outrageous,” and
because the complaint did not allege a severe emotional
injury. In making this determination, the district court
appears to have applied Illinois’ fact-pleading require-
ments for civil complaints. Yet this suit is in federal
rather than state court, and each sovereign may apply its
own procedural rules in its own courts. Rule 8 does not
require plaintiffs to plead the “elements” of legal theories,
or facts corresponding to each element. See Swierkiewicz,
534 U.S. at 510-11; Bartholet v. Reishauer A.G., 953 F.2d
1073, 1077-78 (7th Cir. 1992).
When state and federal practice differ, federal rules
adopted under the Rules Enabling Act prevail. See, e.g.,
Hanna v. Plumer, 380 U.S. 460 (1965); Walker v. Armco
Steel Corp., 446 U.S. 740 (1980). This means, in particular,
that when federal courts entertain claims under state
law—whether under the diversity jurisdiction of 28 U.S.C.
§1332 or, as here, the supplemental jurisdiction of 28
U.S.C. §1367—it is not necessary to plead facts matching
elements of legal theories. See Hefferman v. Bass, 467 F.3d
596, 599 (7th Cir. 2006); AXA Corporate Solutions v.
Underwriters Reinsurance Corp., 347 F.3d 272, 277 (7th
Cir. 2003) (“Parties might prefer the notice-pleading
regime of the Federal Rules of Civil Procedure over the
fact-pleading approach that prevails in Illinois courts,
but no one thinks that the Illinois rules of pleading are
binding on the federal courts.”).
Although the district court was correct in observing
that the complaint did not contain all of the facts that
would be necessary to prevail, “a filing under Rule 8 is not
supposed to do that.” Hoskins v. Poelstra, 320 F.3d 761,
No. 04-4162 19
764 (7th Cir. 2003). Instead, the complaint “should be
‘short and plain’ and suffices if it notifies the defendant of
the principal events.” Id. (quoting Fed. R. Civ. P. 8(a)(2)).
Here, the plaintiffs’ factual allegations described the
principal events giving rise to the suit and attached them
to a right of action cognizable under state law. The plain-
tiffs’ state-law tort claim must be reinstated. Because the
federal claims have been resolved, the district court should
relinquish supplemental jurisdiction so that the state-law
claims may be resolved in state court. 28 U.S.C.
§1367(c)(3).
III. CONCLUSION
For the foregoing reasons, we affirm the district court’s
judgment to the extent that it dismissed the plaintiffs’
federal claims, but we vacate the decision to dismiss the
balance of the action with prejudice. The case is remanded
for further proceedings consistent with this opinion.
RIPPLE, Circuit Judge, concurring in part and dissenting
in part. I join the opinion of the court except in its treat-
ment of the plaintiffs’ claim that Deputy Krieger’s con-
duct deprived them of their right to intimate association.
In my view, the district court erroneously dismissed this
claim at this early stage of the proceedings. Accordingly,
I respectfully dissent from this portion of the court’s
disposition and, in the following sections, shall explain
why I believe that the panel majority opinion is both
factually and legally in error.
20 No. 04-4162
A.
At the outset, it is important to note the procedural
posture of the case as it comes to us. The district court
dismissed this claim for failure to state a claim upon which
relief can be granted. See Fed. R. Civ. P. 12(b)(6). Like the
district court, we therefore must take all the well-pleaded
allegations of the complaint as true. See Hintosh v.
Herman M. Finch Univ. of Health Sci./The Chicago
Med. Sch., 167 F.3d 1170, 1173 (7th Cir. 1999). Indeed, we
must construe those allegations in a light most favorable
to the plaintiffs. See Lee v. City of Chicago, 330 F.3d 456,
459 (7th Cir. 2003). In a civil rights action such as this
one, we cannot require that the plaintiffs set forth their
claim with any more specificity than required for any other
claim. Although our circuit at one time made such a
demand upon litigants, see Sivard v. Pulaski County, 959
F.2d 662, 667 (7th Cir. 1992) (“This Court demands that
plaintiffs suing a municipal body under § 1983 plead with
greater specificity than might ordinarily be required.”), the
Supreme Court has made it clear that there is no legal
justification for such a requirement, see Leatherman v.
Tarrant County, 507 U.S. 163, 168 (1993).
In its analysis of the claim,1 the panel majority simply
characterizes the Deputy’s actions as “[w]atching people
from a squad car.” Slip op. at 16. The complaint, on the
other hand, provides a more disturbing account of the
Deputy’s alleged actions; it paints a picture of a far more
pervasive intrusion into the lives and the relationship of
the plaintiffs. Specifically, the complaint alleges in para-
graph 12 that Deputy Krieger engaged “in a pattern of on-
duty conduct designed to harass, annoy, and intimidate”
1
Notably, the panel majority gives a more accurate summary of
the complaint in its prefatory description of the case. See slip. op.
at 3.
No. 04-4162 21
the plaintiffs by engaging in, among other things, the
following actions:
A. Repeatedly following the Plaintiffs while they
are driving lawfully to and from their destina-
tions, both individually as well as together,
and while they are engaged in lawful conduct;
B. Repeatedly parking his squad car at or near
Plaintiff CHRISTENSON’s [sic] place of em-
ployment and conducting surveillance of her
lawful activities, as well as monitoring her
lawful conduct while employed as a Clerk at
Kelly Williamson Mobil Co.;
C. Abandoning service calls and traffic stops to
follow the Plaintiffs upon recognizing that they
are in the vicinity of where he is located;
D. Parking his squad car outside of businesses
where Plaintiffs’ vehicles are parked when
they are patronizing said businesses, in an
effort to cause them difficulties with the pro-
prietors of such establishments.
R.3 at 4. Most importantly, the complaint alleges specifi-
cally that the Deputy carried out this “pervasive plan of
intimidation” with the specific intent to harm the plain-
tiffs in their relationship “with each other.” Id. The
allegations set forth above do not simply describe an
individual sitting in a police car watching individuals
from afar. Rather, the allegations describe a police officer
not only stalking a couple as they go about performing
the daily tasks of living in a community, but also stalk-
ing in a manner designed to intrude upon and to injure
their relationship.
22 No. 04-4162
B.
My colleagues are quite right to emphasize that claims
based on the concept of substantive due process must be
approached with great care and circumspection. As our
own case law reflects, the Supreme Court has made clear
that the scope of substantive due process is very limited.
See, e.g., Tun v. Whitticker, 398 F.3d 899, 902 (7th Cir.
2005) (citing Washington v. Glucksberg, 521 U.S. 702
(1997)). This reluctance is grounded, in part, in the
realization that “guideposts for responsible decisionmaking
in this unchartered area are scarce and open-ended.”
Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992).
It also finds roots in our reluctance to fix the boundaries
of due process in a way that intrudes into the state’s
proper domain of fashioning principles of private tort
law. The Due Process Clause is intended as a “limitation
of the State’s power to act, not as a guarantee of certain
minimal levels of safety and security.” DeShaney v.
Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 195
(1989).
Nevertheless, the concept of substantive due process
remains an important part of our constitutional jurispru-
dence and, in its limited domain, plays an important role
in the protection of individual liberty. As we noted in Tun,
the essence of substantive due process is protection of the
individual from the exercise of governmental power with-
out reasonable justification. See Tun, 398 F.3d at 902.
In the context of the action of law enforcement authorities,
the situation that we face in this case, “[i]t is most often
described as an abuse of government power which ‘shocks
the conscience.’ ” Id. (quoting Rochin v. California, 342
U.S. 165, 172 (1952)).
Despite the dangers inherent in the implementation of
a constitutional standard that lacks built-in guidelines,
the task is hardly beyond careful judicial implementa-
No. 04-4162 23
tion. First of all, we must remember that, while the
“shocks the conscience” standard seems at first glance to
be highly subjective, the Supreme Court has made it quite
clear that it is objective in nature. In determining what
kind of conduct can be said to shock the judicial con-
science, judges invariably start by “asking whether or not
the objective character of certain conduct is consistent
with our traditions, precedents, and historical understand-
ing of the Constitution and its meaning.” County of
Sacramento v. Lewis, 523 U.S. 833, 857 (1998) (Kennedy,
J., concurring); see also id. at 847-48 n.8. The court must
ask whether the conduct in question “can be said to have
found historical acceptance, or at least tolerance, among
traditional executive practices.” Galdikas v. Fagan, 342
F.3d 684, 690 n.3 (7th Cir. 2003), abrogated on other
grounds by Spiegla v. Hull, 371 F.3d 928, 941-42 (7th Cir.
2004). The determination, of course, also must include
an “objective assessment” of the necessities of contempo-
rary law enforcement, an area in which “the police must
be given substantial latitude and discretion.” County of
Sacramento, 523 U.S. at 857 (Kennedy, J., concurring).
Although negligent action never can be sufficient to meet
the “shocks the conscience” standard, “actions intended
to injure in some way unjustifiable by any governmental
interest” are those most likely to rise to the conscience-
shocking level. Id. at 849. In assessing the particular
governmental conduct at issue, a court cannot view that
conduct in abstracto. It is important that all the facts
and circumstances of the situation be considered. See
Miller v. City of Philadelphia, 174 F.3d 368, 375 (3d Cir.
1999).
Usually, a court is faced with the task of assessing
conduct that took place in the course of undertaking
official duties. In such a context, it is often important to
differentiate between situations in which the state actor
is acting under exigent circumstances and those situations
24 No. 04-4162
in which the state actor is working at a more deliberate
pace. “Where a defendant is ‘confronted with a hyper-
pressurized environment such as a high-speed chase . . .
it is usually necessary to show that the officer deliberately
harmed the victim.’ Where a defendant has ‘the luxury of
proceeding in a deliberate fashion . . . deliberate indiffer-
ence may be sufficient to shock the conscience.’ ” Kaucher
v. County of Bucks, 455 F.3d 418, 426 (3d Cir. 2006)
(quoting Estate of Smith v. Marasco, 430 F.3d 140, 153 (3d
Cir. 2005)); see also, e.g., Armstrong v. Squadrito, 152 F.3d
564, 581 (7th Cir. 1998) (holding that deliberate indiffer-
ence of jailors to prisoner’s repeated complaints, over many
days, that he was being held without a hearing shocked
the conscience).
Although courts usually are asked to assess the ac-
tions of a government official who is performing official
duties, a court sometimes is faced with a situation in
which an officer has not simply acted unreasonably in the
execution of his duties but has used his office not in
connection with any official duty but for his own purposes.
Such an abuse of governmental power, when directed
against the exercise of a fundamental liberty interest, is
an arbitrary abuse of power that shocks the conscience.
See Hawkins v. Holloway, 316 F.3d 777, 787 (8th Cir.
2003). Such conduct, “intended to injure in some way
unjustifiable by any government interest,” is the sort of
conduct “most likely to rise to the conscience-shocking
level.” County of Sacramento, 523 U.S. at 849; see also
Remer v. Burlington Area Sch. Dist., 286 F.3d 1007, 1013
(7th Cir. 2002); Neal v. Fulton County Bd. of Educ., 229
F.3d 1069, 1075 (11th Cir. 2000).
The case before us clearly falls within this last category.
According to the allegations of the complaint, Deputy
Krieger embarked upon a scheme of retaliation against
the plaintiffs in which he used the power and authority of
No. 04-4162 25
his office to injure their relationship. This systematic
vendetta had no conceivable legitimate governmental
purpose. It amounted to the raw use of the power—power
that comes with a badge, a service revolver, and the power
to arrest—in order to make it difficult for this couple to
maintain a romantic relationship that our constitution
protects as a fundamental right.2 The panel majority
fails to recognize that, under the prevailing case law,
such a perverse use of police authority surely shocks the
judicial conscience just as it shocks our national con-
science.
Today’s decision also will have a very practical and
harmful effect on municipal governance throughout this
circuit. The panel majority’s failure to recognize the
situation here as a willful abuse of governmental power
2
My colleagues liken the present situation to the one present
in County of Sacramento v. Lewis, 523 U.S. 833 (1988). In doing
so, they fail to recognize a fundamental difference that was
very apparent to the Supreme Court. County of Sacramento
involved the dangerous chase of a suspect who had ignored the
lawful command of police authorities to stop. The actions of the
police officers in that case, while professionally substandard and
worthy of severe criticism, were not intentional and were
committed in the course of official activity undertaken in exigent
circumstances. Nor did the officers’ actions find opprobrium in
the historic traditions of this country: “Neither our legal tradi-
tions nor the present needs of law enforcement justify finding
a due process violation when unintended injuries occur after the
police pursue a suspect who disobeys their lawful order to stop.”
Id. at 858 (Kennedy, J. concurring). Although substantive due
process analysis must steer a wide berth around traditional
principles of tort law, see id. at 848, “conduct intended to injure
in some way unjustifiable by any government interest is the
sort of official action most likely to rise to the conscience-shock-
ing level,” id. at 849; see also Daniels v. Williams, 474 U.S. 327,
331 (1986).
26 No. 04-4162
and its failure to characterize the conduct as conscience
shocking will have a direct and immediate effect on efforts
to maintain discipline and professionalism in the count-
less number of small municipal police forces that dot our
landscape. This is no easy task for those who have the
responsibility of county and municipal leadership today.
The ravages of undue political influence and the lack of
financial resources for both recruitment and training
make the burden of those in leadership positions a heavy
one indeed. Today, the highest federal court in this region
of the United States sends a surely unintended, but
nevertheless unwelcome, message that minimizes the
significance of a raw use of municipal police power. The
task of the dedicated officers who command those de-
partments just became more difficult.
I respectfully dissent.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-21-07