Judges: Rovner
Filed: Nov. 24, 2015
Latest Update: Mar. 02, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit No. 15-1242 ANTHONY ZIMMERMAN, et al., Plaintiffs-Appellants, v. JEFFREY DORAN, et al., Defendants-Appellees. Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 3:12-cv-50257— Frederick J. Kapala, Judge. ARGUED SEPTEMBER 24, 2015 — DECIDED NOVEMBER 24, 2015 Before MANION, ROVNER, and HAMILTON, Circuit Judges. ROVNER, Circuit Judge. Anthony Zimmerman and Premier Forest Products, In
Summary: In the United States Court of Appeals For the Seventh Circuit No. 15-1242 ANTHONY ZIMMERMAN, et al., Plaintiffs-Appellants, v. JEFFREY DORAN, et al., Defendants-Appellees. Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 3:12-cv-50257— Frederick J. Kapala, Judge. ARGUED SEPTEMBER 24, 2015 — DECIDED NOVEMBER 24, 2015 Before MANION, ROVNER, and HAMILTON, Circuit Judges. ROVNER, Circuit Judge. Anthony Zimmerman and Premier Forest Products, Inc..
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In the
United States Court of Appeals
For the Seventh Circuit
No. 15‐1242
ANTHONY ZIMMERMAN, et al.,
Plaintiffs‐Appellants,
v.
JEFFREY DORAN, et al.,
Defendants‐Appellees.
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 3:12‐cv‐50257— Frederick J. Kapala, Judge.
ARGUED SEPTEMBER 24, 2015 — DECIDED NOVEMBER 24, 2015
Before MANION, ROVNER, and HAMILTON, Circuit Judges.
ROVNER, Circuit Judge. Anthony Zimmerman and Premier
Forest Products, Inc. (“Premier”), of which Zimmerman is
president and owner, filed a complaint under 42 U.S.C. § 1983
against defendants Jeffrey Doran, Ryan Kloepping, Kenneth
Sandy, and Michael Rannow, who held the positions
respectively of sheriff, deputy, chief deputy, and detective of
the Carroll County Sheriff’s Office. The complaint alleged false
2 No. 15‐1242
arrest in violation of the Fourth Amendment and deprivation
of property without due process in violation of the Fourteenth
Amendment. The parties presented the district court with
cross‐motions for summary judgment, and the court granted
summary judgment for the defendants and denied summary
judgment to the plaintiffs.
Because the parties’ Rule 56.1 submission failed to
succinctly identify the undisputed issues of fact, and instead
included irrelevant facts and legal arguments, the district court
gleaned the facts from the record as a whole. We rely on the
district court’s recitation of facts which are not contested by the
parties on appeal.
On April 20, 2010, Premier entered into a contract with
Raymond Cichon, a landowner in Carroll County, to harvest
trees from Cichon’s property. This agreement was the second
contract between the parties for the harvesting of trees. The
first was in November 2009 for the harvesting of merchantable
walnut trees on Cichon’s property, and was successfully
concluded by the end of 2009. The April 2010 contract was
titled “Timber Sale Contract and Deed to Timber,” and
provided that Premier “may cut and remove from [Cichon’s]
Lands all the timber marked or designated for removal,” and
further stated that Premier would “harvest all merchantable
Aspen, Elm, Box Elder, Mulberry, Black Locust and all
merchantable storm damaged timber including Oak, Cherry,
Hickory, Ash, Walnut and Basswood.” Toward that end, the
contract granted Premier “access to the timber or other forest
products designated in this contract.” Premier recorded the
contract with the county on May 26, 2010, and began its
No. 15‐1242 3
logging operations on July 15, 2010. The project was expected
to last one month but was delayed by rain.
In August 2010, the events forming the basis of this case
occurred. According to Cichon, he learned at that time that
Premier had been harvesting trees without regard to fence
lines and thereby removing trees from the property of two of
his neighbors as well as from the township’s right of way.
Cichon also was concerned that Premier was destroying the
ground in its work because the ground was unusually wet at
the time. In response to those concerns, Cichon contacted his
attorney who sent a letter on August 20, 2010, to Richard C.
Zimmerman (who was Zimmerman’s father and the former
owner of Premier) demanding that Premier “cease and desist
from any further cutting of trees, removing of any wood
products, further destruction of the land, and performing any
other activities on the Property.” Although the letter was sent
to his father, Zimmerman acknowledged that he received the
letter on August 24 or 25, but he disregarded it because he
believed that the contract could be halted only through a court‐
issued temporary restraining order.
Cichon also contacted the Carroll County Sheriff’s Office in
an attempt to halt the logging operations on his property. On
August 23, 2010, he informed the dispatcher that he had
“retained a logger to do some work on [his] land” but the
logger had “taken more than he was supposed to.” He further
advised the dispatcher that he had retained an attorney and
served a “cease and desist” on the logger,” and that the logger
was “pulling in there right now in the darkness to load up
some trees” and requested that the dispatcher send someone
out to the property. Deputy Hiher, who is not a defendant in
4 No. 15‐1242
this action, responded to the scene and had the loggers unload
the logs and place them back on the property. Informed of that
development by his employees, Zimmerman vowed to return
to the property the next day. He texted Cichon at 3:10 a.m. on
August 24, 2010, and the two exchanged texts in which Cichon
told Zimmerman that a stop work order had been issued and
that Premier was not to do any work on the property until the
matter was resolved. Cichon also informed Zimmerman that
he would call the sheriff for trespassing if Zimmerman failed
to comply. Zimmerman, however, proceeded to the property
with the trucks that morning and waited as the logs were
loaded and transported to the mill.
At 6:59 that same morning, Cichon again sought help from
the Sheriff’s office and Deputy Kloepping and Chief Deputy
Sandy soon arrived at the property. Zimmerman informed
them that he had never been served with a cease and desist
order and showed them the contract granting him the right to
harvest timber on the property. Kloepping then spoke with
Sheriff Doran and Carroll County State’s Attorney Scott
Brinkmeier on the telephone regarding how to proceed in the
matter. Both Doran and Brinkmeier responded that if Cichon
wanted Zimmerman to leave the property, Zimmerman had to
comply and he could pursue any breach of contract claims in
a civil lawsuit. Brinkmeier further declared that if the property
owner wanted someone to leave his property and the person
refused, that was a criminal matter and the person could be
arrested for criminal trespass.
Kloepping relayed that information to Sandy, who then
advised Zimmerman that he needed to exit the property
because the owner did not want him there and that if he
No. 15‐1242 5
returned he would be arrested for criminal trespass.
Zimmerman agreed to leave for the day. He then investigated
whether a temporary restraining order had been filed against
him and discovered that nothing had been filed. In the
meantime, Kloepping also inquired further into the situation,
requesting a copy of the cease and desist order from Cichon,
who faxed it to him. Kloepping noticed that the cease and
desist order did not show service and spoke with Cichon’s
attorney the next day who informed him that he had not yet
received a return receipt showing delivery of the cease and
desist letter. Cichon’s attorney also notified Kloepping that
they were in the process of filing a federal lawsuit against
Premier and maintained that Premier had taken numerous
trees that it did not have permission to harvest and that the
contract was fraudulent. Cichon’s attorney further indicated
that Zimmerman should be arrested if he returned to the
property.
On the morning of August 25, Sandy spoke with
Zimmerman and Zimmerman informed him that he was back
on the property and was cutting wood. Zimmerman
maintained that since there was no cease and desist order filed,
he had the right to fulfill his contract and that the matter was
a civil not criminal concern. Sandy alerted Zimmerman that he
would be arrested for trespass if he was found on the property.
Accordingly, Deputies Sandy, Kloepping and Rannow
proceeded to the property and discovered Zimmerman
removing trees from the ground on Cichon’s property using a
“large motorized construction machine.” After allowing
Zimmerman to drive the machine off the property and park it,
they arrested him.
6 No. 15‐1242
Zimmerman alleges that the defendants violated his
constitutional rights in arresting him for criminal trespass. The
district court granted summary judgment for the defendants,
concluding that the defendants possessed probable cause for
the arrest and alternatively that the defendants were entitled
to qualified immunity for their actions. The appellants provide
only a generalized, cursory argument that the district court
erred in finding qualified immunity, and as that is dispositive
we confine our analysis to that issue.
We review a district court’s grant of summary judgment
based on qualified immunity de novo, accepting all facts and
inferences in the light most favorable to the non‐moving party.
Hardaway v. Meyerhoff, 734 F.3d 740, 743 (7th Cir. 2013). Under
the doctrine of qualified immunity, officials are shielded from
civil liability “‘insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.’” Pearson v. Callahan,
555 U.S. 223, 231 (2009), quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982). A right is clearly established if it is sufficiently
clear that any reasonable official would understand that his or
her actions violate that right, meaning that existing precedent
must have placed the statutory or constitutional question
beyond debate. Mullenix v. Luna, ___ U.S. ___, 136 S. Ct. 305,
308 (2015); Kingsley v. Hendrickson, 801 F.3d 828, 832 (7th Cir.
2015). “Put simply, qualified immunity protects ‘all but the
plainly incompetent or those who knowingly violate the law.’”
Mullenix, 136 S. Ct. at 308, quoting Malley v. Briggs, 475 U.S.
335, 341 (1986).
The Supreme Court has repeatedly cautioned against
defining clearly established law at a high level of generality.
No. 15‐1242 7
Id.; City and County of San Francisco, Calif. v. Sheehan, ___ U.S.
___, 135 S. Ct. 1765, 1775‐76 (2015).
The dispositive question is “whether the
violative nature of particular conduct is clearly
established. ... This inquiry “‘must be
undertaken in light of the specific context of the
case, not as a broad general proposition.’” ...
Such specificity is especially important in the
Fourth Amendment context, where the Court
has recognized that “[i]t is sometimes difficult
for an officer to determine how the relevant
legal doctrine ... will apply to the factual
situation the officer confronts.”
[citations omitted] Mullenix, 136 S. Ct. at 308; see also Brosseau
v. Haugen, 543 U.S. 194, 198‐200 (2004); Sheehan, 135 S. Ct. at
1775‐76.
Zimmerman has failed to identify any factually similar case
that would have alerted the defendants that they lacked
probable cause to arrest him for trespass. Instead, Zimmerman
relies on generalized assertions of law, arguing that it was
clearly established that absent probable cause, the officers
could not arrest him for trespass. The Supreme Court has
consistently rejected formulations of qualified immunity in the
Fourth Amendment context that are based on such generalized
assertions. For instance, the Court held that the required
degree of specificity was lacking where the clearly established
right was defined as the “right to be free from warrantless
searches of one’s home unless the searching officers have
probable cause and there are exigent circumstances.” Anderson
8 No. 15‐1242
v. Creighton, 483 U.S. 635, 640 (1987); Mullenix, 136 S. Ct. at 308‐
10. That formulation, rejected in Anderson, is materially
indistinguishable from the formulation set forth by
Zimmerman. It is not enough to simply assert that it was
clearly established law that officers need probable cause to
arrest a person. Zimmerman needed to demonstrate that it was
clearly established that probable cause was lacking in the
circumstances presented here.
Zimmerman provides no caselaw setting forth the relative
rights of a property owner and the possessor of a timber deed.
Under Illinois law, the criminal offense of trespass is
committed when a person “... enters upon the land of another,
after receiving, prior to entry, notice from the owner ... that the
entry is forbidden” or “remains upon the land of another, after
receiving notice from the owner ... to depart.” 720 ILCS 5/21‐
3(a). It is undisputed that Zimmerman received notice to
depart the property, both from the owner in the cease and
desist letter and in texts, and from the officers relaying the
information to him directly. He chose to remain on the
property against the owner’s wishes and therefore falls within
the plain language of the criminal statute. Moreover, before
arresting Zimmerman, the defendants attempted to sort out the
relative legal rights, including contacting the state’s attorney
for advice as to whether the actions constituted criminal
trespass. We have held that “‘[c]onsulting a prosecutor may
not give an officer absolute immunity from being sued for false
arrest, but it goes far to establish qualified immunity.
Otherwise the incentive for officers to consult prosecutors—a
valuable screen against false arrest—would be greatly
diminished.’” Fleming v. Livingston Cnty., Ill., 674 F.3d 874, 881
No. 15‐1242 9
(7th Cir. 2012), quoting Kijonka v. Seitzinger, 363 F.3d 645, 648
(7th Cir. 2004).
Zimmerman’s claim that no reasonable officer could believe
that there was probable cause to believe he was trespassing is
based on his theory that the timber deed rendered him the
“owner” of the property. He further faults the defendants for
failing to read the timber deed which he asserts would have
established his right to remain on the property.
Zimmerman, however, provides no caselaw that would
have indicated to the defendants that a timber deed granted
such rights to the recipient. The timber deed itself transfers to
him only ownership of the specified timber and grants a right
of access to harvest the timber. It does not provide that the
right of access is unbounded and cannot be restricted in time
or manner by the property owner. In addition, Cichon had
informed the defendants that Premier was harvesting timber
beyond that allowed in the agreement, and if the actions were
outside the terms of that agreement then that agreement could
not be a source of his relative rights.
Zimmerman provides only citations to two cases
establishing that a possessor of a timber deed has a legal right
to be on the land under the contract, Matthews v. Brown, 62
N.C. App. 559, 561 (1983) and Mitchell v. Broadway, 177 N.C.
App. 430, 434‐35 (2006), but that is insufficient. As an initial
matter, the cases are from courts in North Carolina and do not
even address Illinois law, which controls here. Under Illinois
law, an individual can be guilty of criminal trespass even if the
initial entry was lawful if the person refuses to leave the
property after receiving notice from the owner to depart. People
10 No. 15‐1242
v. Kraft, 660 N.E.2d 114, 117 (Ill. App. 1 Dist. 1995). Therefore,
the legality of his initial entry is not dispositive. As the district
court noted, Zimmerman failed to provide any caselaw
establishing the legal impact of a timber deed in Illinois or
indicating that Zimmerman thereby possessed an ownership
interest that trumped the property owner’s right to exclude
others from his property, particularly where, as here, the
owner had indicated that the exclusion was temporary until
the situation could be worked out between them. In fact, at
least in the context of civil trespass, a number of courts
addressing claims that a person was harvesting timber
inconsistent with the provisions of a timber deed have
recognized that the person on the property pursuant to the
timber deed can nevertheless commit trespass. Dugal Logging
Inc., v. Arkansas Pulpwood Co., 988 S.W.2d 25, 32‐33 (Ark. App.
Ct. 1999); Boswell v. Roy O. Martin Lumber Co., Inc., 355 So.2d 33,
36 (La. App. Ct. 1978) rev’d on other grounds Boswell v. Roy O.
Martin Lumber Co., Inc., 363 So. 2d 506 (La. S. Ct. 1978); Morgan
v. Fuller, 441 So.2d 290 (La. App. Ct. 1983). Because
Zimmerman has not identified clearly established law that
would alert the officers that a person on land pursuant to a
timber deed cannot commit trespass, the district court did not
err in granting summary judgment to the defendants on the
ground of qualified immunity.
The district court similarly did not err in granting summary
judgment to defendants on the plaintiffs’ claim under the
Fourteenth Amendment that the actions of the defendants
shocked the conscience. In light of the repeated warnings from
the officers that the property owner wanted Zimmerman to
leave the property and that he would be arrested for trespass
No. 15‐1242 11
if he refused to do so, and his ultimate decision to nevertheless
remain on the property, the plaintiffs have not demonstrated
that the defendants engaged in arbitrary conduct unjustifiable
by any government interest. See Remer v. Burlington Area Sch.
District, 286 F.3d 1007, 1013 (7th Cir. 2002) (recognizing that an
abuse of power is arbitrary if it shocks the conscience and the
plaintiff demonstrates that the official conduct is unjustifiable
by any governmental interest); Steen v. Myers, 486 F.3d 1017,
1023 (7th Cir. 2007).
The decision of the district court is AFFIRMED.