Dzevad Hurem v. Nickolas Tavares , 793 F.3d 742 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-1269
DZEVAD HUREM,
Plaintiff-Appellant,
v.
NICKOLAS TAVARES, JOHN DINEEN, LILLIAN BEDIA, CAROL
FONTANETTA, and HECTOR DAVILA,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11 C 1418—Virginia M. Kendall, Judge.
____________________
ARGUED JANUARY 7, 2015 — DECIDED JULY 14, 2015
____________________
Before WOOD, Chief Judge, and POSNER and EASTERBROOK,
Circuit Judges.
WOOD, Chief Judge. In October 2010 Nasreen Quadri
bought an apartment in the West Ridge area of Chicago. At
some point thereafter, she learned that the police had inves-
tigated a disturbance there, and so in January 2011 she visit-
ed the apartment with her real estate agent and a locksmith.
Quadri’s agent called 911 after the group found Dzevad
2 No. 14-1269
Hurem in the unit. Hurem told an arriving police officer he
had paid rent to Quadri’s husband Moshim and obtained
keys from him, but he failed to obtain a receipt, lease, or any
other paperwork about his residence there. He refused to
leave. Two days later, Quadri again found Hurem in the
apartment, and her agent again called 911. Hurem still could
not produce anything proving he had a right to be there,
save for the keys and a piece of paper with Moshim’s phone
number written on it. Hurem again refused to leave. This
time the officers arrested him, but ultimately he was not
charged with any crime. Hurem sued the Quadris, the ar-
resting officers, and the City of Chicago in state court for
wrongful eviction and various civil rights violations. After
removal, and after the Quadris and the City were dismissed
as defendants, the district court granted partial summary
judgment in favor of all but one remaining officer defendant
and Hurem dropped his case against the last one. Hurem
appeals, and we affirm.
I
Nasreen Quadri purchased apartment 3F at 6126 North
Damen Avenue in Chicago in a foreclosure sale held in Oc-
tober 2010. As we have noted, the events underlying this
case began on January 5, 2011, when Quadri and her proper-
ty agent, Daniel Ju, visited the apartment along with a lock-
smith to investigate a report of a disturbance. They found
Hurem inside; the police came in response to a 911 call; and
Hurem told them that he was there legitimately. He said that
the previous tenant had given him the keys before the fore-
closure, and that he had paid rent to Moshim. The parties
dispute the reason Hurem was not arrested at that time.
No. 14-1269 3
Two days later, Moshim and Nasreen Quadri returned to
the Damen Avenue apartment, again with the real estate
agent and locksmith in tow. Hurem was still there, and so
Quadri’s agent called 911. Chicago police officers responded
to the call. Nasreen showed them paperwork confirming that
she owned the apartment and told them that she and Mo-
shim did not know Hurem. The officers asked Hurem for
documentation of his right to be in the apartment, and he
handed them a piece of paper with Moshim’s phone number
on it. He also told the new officers that he had paid rent to
Moshim, but Moshim denied this. Beyond that, Hurem did
not produce any proof that he had paid Moshim anything.
Before the officers arrested Hurem, they gave him the option
of leaving the apartment on his own. He refused to do so,
and so they arrested him on the spot, without a warrant.
Hurem later experienced chest pain at the police station and
was taken to a nearby hospital. In the end, Hurem never
faced charges in connection with the Quadris’ apartment.
Invoking 42 U.S.C. § 1983, Hurem sued the Quadris
along with the city and the five Chicago police officers who
responded to the 911 call on January 7. His operative com-
plaint at the time of summary judgment asserted claims of
deprivation of property, deprivation of liberty (that is, the
alleged false arrest), and excessive force. Before the sum-
mary judgment motion was filed, Hurem amended his com-
plaint to omit the city as a defendant and settled with the
Quadris. This left the five officers as defendants. The district
court granted partial summary judgment to four of the of-
ficer defendants on most of Hurem’s claims, leaving only the
excessive force claim against Bedia for disposition. That part
of the case was transferred to a magistrate judge after the
parties consented to his jurisdiction. 28 U.S.C. § 636(c).
4 No. 14-1269
About seven months later, Hurem voluntarily dismissed his
remaining claim against defendant Bedia and the court ter-
minated the case. Hurem has appealed from that final judg-
ment. See 28 U.S.C. § 1291.
II
We begin, as Hurem does, with his claim of false arrest.
He contends that the officers who arrested him lacked prob-
able cause to do so. See Gibbs v. Lomas, 755 F.3d 529, 537 (7th
Cir. 2014). He must prevail on that point in order to move
forward, because “the presence of probable cause makes a
warrantless arrest reasonable under the Fourth Amend-
ment.” Id. The existence of probable cause is therefore an ab-
solute defense to a § 1983 claim for false arrest. As we often
have observed, “[p]robable cause to make an arrest exists
when a reasonable person confronted with the sum total of
the facts known to the officer at the time of the arrest would
conclude that the person arrested has committed, is commit-
ting, or is about to commit a crime.” Venson v. Altamirano,
749 F.3d 641, 649 (7th Cir. 2014). The defendants contend
they had probable cause to arrest Hurem for criminal tres-
pass to real property. See 720 ILCS 5/21-3(a)(1) (crime occurs
when a person “knowingly and without lawful authority en-
ters or remains within or on a building”).
Hurem offers two reasons to reject that conclusion. The
first is based on his understanding of the facts relating to his
January 7 arrest along with events before that day, including
Nasreen’s first visit to the apartment on January 5. Hurem
says, for example, that he had been living in the apartment
for at least a month pursuant to a verbal agreement with the
Quadris, and that on January 5 Moshim admitted that
Hurem had paid him rent. (The defendants dispute both of
No. 14-1269 5
these assertions.) The difficulty with Hurem’s reliance on
these earlier events, assuming they occurred, is that there is
no indication in the record that the arresting officers knew
about them. Our evaluation of probable cause requires us to
consider the arresting officers’ knowledge at the time of the
arrest. We cannot impute Hurem’s own knowledge of past
events to the officers who arrested him. Hurem refers to the
presence of a Sergeant Willoughby at the January 5 incident,
implying that Willoughby knew of Hurem’s verbal rent
agreement with Moshim, but there is no indication that
Willoughby spoke to any of the officers who are defendants
in this case before they responded to the 911 call on January
7. In fact, the January 7 team heard Moshim deny that such
an arrangement existed, while everyone was at the apart-
ment. Moreover, although the defendants acknowledge that
one officer (Davila) who came to the apartment on January 7
also responded on January 5, Davila testified that he arrived
on January 5 as Willoughby was leaving and never learned
what occurred in the apartment that day.
The situation before the officers who responded on Janu-
ary 7 provided sufficient information for them reasonably to
believe that Hurem had committed criminal trespass. They
were confronted with conflicting stories—one from Hurem
that he legitimately lived in the apartment and paid rent, the
other from the Quadris to the contrary. Nothing prevented
them from deciding to believe the Quadris. Officers may rely
upon information that a reasonably credible putative witness
or victim provides in deciding to make an arrest, even if the
suspect says otherwise. See Williamson v. Curran, 714 F.3d
432, 441 (7th Cir. 2013) (collecting cases). Although Hurem
had a piece of paper with Moshim’s phone number on it,
that is the sole document he presented to show that he was
6 No. 14-1269
legally renting the apartment. He had no lease, no mail in his
name showing the address of the apartment, and no person
who could confirm his account. Even had there been mail, all
that would have shown would be longer-term occupancy; it
would have said little about whether that occupancy was au-
thorized. The fact that he had keys to the apartment and
claimed that the furniture was his did not automatically dis-
qualify him as an unauthorized squatter. The Quadris, on
the other hand, came to the apartment with a property agent
and a locksmith and presented the officers with proof that
they owned the apartment. They told the officers they had
not rented it to Hurem.
Although it is certainly possible to envision a landlord-
tenant relationship that is paper-free—indeed, we do not
doubt that such relationships exist—the mere possibility of
such an arrangement was not sufficient to defeat the exist-
ence of probable cause. Hurem’s dearth of evidence that he
had actually rented the apartment certainly did not help
him. On the facts as they stood, the police reasonably found
probable cause for the arrest.
Hurem’s second argument about probable cause is a legal
one: he contends that the defendants’ failure to adhere to Il-
linois’s Forcible Entry and Detainer Act in arresting him
transformed his arrest into an unreasonable seizure as a mat-
ter of law. See 735 ILCS 5/9-101 et seq. This law prohibits an-
yone from entering property by force and provides a cause
of action to those who are “entitled to the possession of
lands or tenements” against those without such entitlement
who occupy the owner’s property. 735 ILCS 5/9-102(a)(2); see
also In re Williams, 144 F.3d 544, 547–48 (7th Cir. 1998) (de-
scribing operation of the statute). Hurem contends that the
No. 14-1269 7
officers lacked probable cause to arrest him because “Illinois
law did not allow police to evict and arrest an occupant for
trespass as the Forcible Entry & Detainer Act was the sole
means of evicting a person from his residence.” Yet Hurem
fails to connect the dots between the defendants’ supposed
violation of that statute and probable cause analysis.
We begin with a point that could, on its own, dispose of
this argument: “state restrictions do not alter the Fourth
Amendment’s protections.” Virginia v. Moore, 553 U.S. 164,
176 (2008); see also Jackson v. Parker, 627 F.3d 634, 640 (7th
Cir. 2010) (“[S]tate law does not control the reasonableness
inquiry under the Fourth Amendment.”). A state may
“choose[] to protect privacy beyond the level that the Fourth
Amendment requires,” but the Fourth Amendment requires
only that an arrest be based upon probable cause, which
“serves interests that have long been seen as sufficient to jus-
tify the seizure.” Moore, 553 U.S. at 171, 173. The remedy for
a violation of such a state law is in state court. We recog-
nized in Gordon v. Degelmann, 29 F.3d 295, 301 (7th Cir. 1994),
that Illinois’s forcible entry statute imposes a prior procedur-
al requirement before a person can be removed from a par-
ticular property: there must be a judicial hearing to deter-
mine a person’s entitlement to remain. We observed that this
procedure went beyond what the Fourth Amendment re-
quires and concluded that a police officer’s failure to afford
the plaintiff the hearing mandated by state law “does not
matter—not, at least, to a claim under the fourth amendment
and § 1983,” given the plaintiff’s violation of Illinois’s crimi-
nal trespass law. Id.
So it is in Hurem’s case, and we decline his invitation to
overrule Gordon. It may be that, as in People v. Evans,
8 No. 14-1269
516 N.E.2d 817 (Ill. App. Ct. 1987), the Quadris should have
sought a remedy under Illinois’s forcible entry law rather
than call 911 after confronting Hurem at the apartment. But
that does not mean that the police violated the Fourth
Amendment in arresting Hurem. They had probable cause
to arrest Hurem for violation of Illinois’s criminal trespass
statute, which as in Gordon “forbids exactly the conduct in
which [Hurem] appeared (to [the defendants]) to be en-
gaged.” Gordon, 29 F.3d at 301. Hurem points to Soldal v. Cook
Cnty., 506 U.S. 56 (1992), as a reason for us to depart from
this conclusion. We were already familiar with Soldal when
we decided Gordon, where we noted that the question in
Soldal “was whether taking away a mobile home is a ‘seizure’
under the fourth amendment.” Gordon, 29 F.3d at 301; see
also Soldal, 506 U.S. at 60 (issue was “whether the seizure
and removal of the Soldals’ trailer home implicated their
Fourth Amendment rights”). No one disputes that Hurem
was seized. In Soldal, the Supreme Court did not reach the
question whether the removal of the mobile home was un-
reasonable and thus in violation of the Fourth Amendment,
as is the issue here. So it is not the case, as Hurem argues,
that Soldal controls our decision.
Hurem finally argues that the defendants are not entitled
to qualified immunity against his claims. As in Gordon, be-
cause we conclude that the defendants did not violate the
Fourth Amendment, we need not discuss whether they have
immunity from suit.
III
Hurem also argues that the defendants violated his Fifth
Amendment right to due process by seizing his property
without notice or an opportunity for a hearing. He intermin-
No. 14-1269 9
gles this issue with allusions to seizure of property (by
which Hurem means his eviction from the apartment, not
any kind of seizure of his furniture, for example) under the
Fourth Amendment. This argument requires little comment
because Hurem waived it. Not even a generous reading of
the record reveals that Hurem adequately presented a con-
stitutional due process claim related to his property in the
district court. In his complaint, Hurem argued that he had
been deprived of property, but only as a matter of state and
municipal law, not under the federal constitution. At sum-
mary judgment, Hurem did not oppose the officers’ motion
on due process grounds; he presented only his excessive
force and false arrest claims. We thus cannot consider these
arguments on appeal. Frey Corp. v. City of Peoria, 735 F.3d
505, 509 (7th Cir. 2013). Nonetheless, we note that in arrest-
ing Hurem, the officers did not seize Hurem’s property; they
seized only Hurem himself. Thus he may have found it diffi-
cult to prevail on such a claim.
IV
Hurem’s dispute with the Quadris was unfortunate, but
the events surrounding it did not give rise to a constitutional
violation. He has not shown that the defendants lacked
probable cause to arrest him, a necessary predicate for his
false arrest claim, and he has waived any due process claim.
We therefore AFFIRM the judgment of the district court.