Opinion
No. 00 C 5294
April 18, 2001
MEMORANDUM ORDER
Plaintiff Jesus Quinones alleges that rather than awaiting the outcome of an eviction proceeding, Defendant Tom Tentler, property manager of the apartment where Quinones lived, asked Chicago police officers to arrest Plaintiff as an alleged trespasser. In his First Amended Complaint, Plaintiff charges that Tentler and the three police officers who arrested him conspired to violate his Fourth Amendment rights (Count I); that Tentler and the three officers are guilty of trespass (Count II); and that Tentler and his employer, Defendant Hodie Building Management Company, violated the Chicago Residential Landlord Tenant Ordinance (Count III). Defendant Police Officers Avita Cortes, Eileen Lewis and Remo Leoni ("Defendant Officers") now move to dismiss the First Amended Complaint as against them. For the reasons set forth below, the motion is granted in part and denied in part.
DISCUSSION
A motion to dismiss a complaint pursuant to FED. R. CIV. P. 12(b)(6) does not test whether the plaintiff will prevail on the merits but instead tests whether the claimant has properly stated a claim. See Pickrel v. City of Springfield, 45 F.3d 1115, 1118 (7th Cir. 1995) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). In deciding a motion to dismiss, the court will consider all allegations of the complaint as true, and will draw all reasonable inferences in favor of the plaintiff. Pickrel, 45 F.3d at 1116; Zinermon v. Burch, 494 U.S. 113, 118 (1990). It is well established that a dismissal is proper only if it appears beyond doubt that a plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
Count I
In Count I, Plaintiff alleges that Defendant Officers, acting under color of state law, deprived him of his Fourth Amendment rights. Defendants Officers concede they were acting under color of state law on August 19, 2000, when they appeared at Plaintiff's apartment and threatened to arrest him unless he vacated the premises. They argue, however, that their actions did not violate the Fourth Amendment because they were acting on "the credible complaint of Mr. Tentler." (Defendant Officer Cortes, Lewis and Leoni's Reply to Plaintiff's Response, at 3.) Further, according to Defendants, the police did not have any indication that Tentler was attempting an "eviction," as suggested by plaintiff. . . . . Tentler called the police and stated . . . that plaintiff was a trespasser. Plaintiff apparently did not have a lease or any official documentation showing that he had any legal right to occupy the apartment. Id.
The difficulty with this argument is that it relies on facts that go beyond — and to some degree actually contradict — the allegations in Plaintiff's amended complaint. The complaint says nothing about any "credible complaint" made by Mr. Tentler to Defendant Officers. Plaintiff has alleged that "Tom Tentler contacted the Chicago Police Department for the purpose of effecting plaintiff's arrest as an alleged trespasser" (First Amended Complaint ¶ 17); but he has not alleged that Tentler actually told the police Plaintiff was a trespasser. Also, contrary to Defendants' version of the facts, Plaintiff has specifically alleged that Defendant Officers "read or were otherwise aware of the letter from [the lease tenant's] attorney," which, according to Plaintiff, "advised that plaintiff was residing in the Apartment with [the lease tenant]'s permission." (Id. ¶¶ 20, 15, 16.) Nor has Plaintiff "admitted" that Defendant Officers could have obtained a warrant for his arrest, as Defendants suggest. (Defendants' Reply Memo, at 3.) To the contrary, the portion of Plaintiff's brief to which Defendant Officers themselves cite states that Defendants "could not have gotten" a warrant. (Plaintiff's Response to Motion to Dismiss, at 11) (emphasis supplied.)
The parties have cited several cases in which courts have addressed circumstances similar to those alleged here and concluded that police officers were entitled to qualified immunity where they carried out a landlord's request to threaten a tenant with arrest. See Kernats v. O'Sullivan, 35 F.3d 1171 (7th Cir. 1994) (police officer's conduct in ordering tenants to leave rental premises did not constitute a "seizure" under clearly established law at time of incident); Spiegel v. City of Chicago, 106 F.3d 209 (7th Cir. 1996) (police officers were entitled to qualified immunity from liability under § 1983 for alleged Fourth Amendment violation when officers prevented former tenant from entering his former apartment which was in possession of landlord). In this case, however, Defendant Officers do not argue qualified immunity, but instead assert that Tentler's alleged complaint established probable cause to arrest Plaintiff for criminal trespass.
As to this argument, the court is less certain. Under the Illinois criminal trespass statute, neither a tenant nor his invited guest may be charged as a trespasser. 720 ILCS 5/21-3(c). Further, at least some case law indicates that a landlord may not use criminal trespass charges to resolve a dispute over the right of possession of property. See City of Quincy v. Daniels, 246 Ill. App.3d 792, 796, 615 N.E.2d 839, 843 (4th Dist. 1993). Such disputes are to be governed exclusively by the Illinois Forcible Entry and Detainer Act. See 735 ILCS 5/9-10. See also Gordon v. Degelmann, 29 F.3d 295, 297 (7th Cir. 1994) ("[I]n Illinois a person residing in a dwelling under a claim of right is entitled to the judicial hearing afforded by the forcible entry and detainer statute before he may be removed as a trespasser."); City of Quincy, 246 Ill. App.3d at 796, 615 N.E.2d at 843 (same); People v. Evans, 163 Ill. App.3d 561, 564, 516 N.E.2d 817, 819 (1st Dist. 1987) (same); People v. Rynberk, 92 Ill. App.3d 112, 115, 415 N.E.2d 1087, 1090 (1st Dist. 1980) ("[W]e note that Keeling was on defendant [landlord]'s property at the express invitation of a tenant on the property and therefore cannot be deemed a trespasser as a matter of law even if defendant misapprehended that an invitee of a lessee could be guilty of a trespass.").
Plaintiff has alleged that, without probable cause, Defendant Officers threatened to arrest him for trespass unless he vacated his home. The court concludes that this conduct, like that of the defendants in Soldal v. Cook County, 506 U.S. 56, 61 (1992), constituted a "seizure" of property in violation of the Fourth Amendment. The motion to dismiss Count I is denied.
Count II
Defendants also seek dismissal of Count II, in which Plaintiff alleges that the conduct of Defendant Tentler and the Defendant Officers constituted trespass. (First Amended Complaint ¶ 28.) He alleges, further, that the actions of Defendants Hodie and Tentler "were wilful and wanton." (Id. ¶ 29.)
Neither side has addressed an issue that troubles the court: whether Plaintiff, who was neither the owner nor lease tenant on the property, but was residing there with the tenant's permission, has standing to maintain an action for trespass. As Defendants have not challenged Plaintiff's standing on this ground, the court will not reach the issue here.
Defendant Officers argue that this state tort claim must be dismissed under immunity doctrines, or because they "made no intentional invasion into plaintiff's property." (Defendant Officers' Motion to Dismiss, at 6.) Under Illinois law, trespass is an intentional invasion of the exclusive possession and physical condition of land. Dietz v. Illinois Bell Tel. Co., 154 Ill. App.3d 554, 507 N.E.2d 24 (1st Dist. 1987). One can be liable in trespass for an intrusion by a thing or third person if he acts with knowledge that his conduct will, to a substantial degree of certainty, result in the intrusion. Thus, a person who aids, abets, assists, or directs the commission of a trespass by another is liable for trespass. Id. at 559, 507 N.E.2d at 26. Plaintiff has alleged that Defendant Officers aided or assisted Defendant Tentler in invading Plaintiff's possession of his apartment. These allegations are sufficient under the standards set forth in Dietz.
Illinois law cloaks police officers with immunity for their conduct in certain circumstances. One statute provides for immunity from liability for any injury "caused by the act or omission of another person." 745 ILCS 10/2-204. The court agrees with Plaintiff that Defendants are not shielded by this provision. Although Plaintiff has alleged that Tentler directed Defendant Officers' conduct, only police officers have the power to arrest him. Further, Defendant Officers have the obligation to make an independent determination of probable cause. Their alleged threat to arrest Plaintiff was their own act, not that of another.
Illinois law also furnishes police officers with immunity for their conduct in law enforcement, unless that conduct is "willful and wanton." 745 ILCS 10/2-202. Defendants urge that they are immune from tort claims for trespass under this provision. "Willful and wanton conduct" is defined as "a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property." 745 ILCS 10/1-210. Willful and wanton conduct consists of more than mere inadvertence, incompetence, or unskillfulness. Moran v. City of Chicago, 286 Ill. App.3d 746, 755, 676 N.E.2d 1316, 1323 (1st Dist. 1997) (citing Geimer v. Chicago Park District, 272 Ill. App.3d 629, 638, 650 N.E.2d 585, 592 (1st Dist. 1995)). Plaintiff argues that Defendant Officers' conduct was indeed deliberate, willful and wanton. Notably, however, the First Amended Complaint itself contains no allegations of willful and wanton conduct on the part of Defendant Officers. Plaintiff's silence on this issue is particularly significant in light of his specific allegation that the conduct of Defendants Hodie and Tom Tentler was willful and wanton.
The court concludes that Plaintiff has adequately alleged acts by Defendants themselves that support a claim of civil trespass. Because he has not alleged that Defendant Officers acted willfully and wantonly, however, their motion to dismiss Count II is granted.
CONCLUSION
Defendant Officers' motion to dismiss is denied with respect to Count I and granted with respect to Count II.