Halprin, Robyn v. Prairie Single Fam ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
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No. 02-2975
ROBYN HALPRIN and RICK HALPRIN,
Plaintiffs-Appellants,
v.
THE PRAIRIE SINGLE FAMILY HOMES OF
DEARBORN PARK ASSOCIATION, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 01 C 4673—James H. Alesia, Judge.
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ARGUED SEPTEMBER 27, 2004—DECIDED NOVEMBER 4, 2004
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Before POSNER, KANNE, and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge. The district court dismissed this
suit under the Fair Housing Act, 42 U.S.C. §§ 3601 et seq., for
failure to state a claim, specifically under sections 3604 and
3617; there are also state law claims, but as is usual the
district judge relinquished jurisdiction over them when he
dismissed the federal claims before trial. The plaintiffs are
a couple who own a home in a suburban subdivision. The
principal defendant is the homeowners’ association that
2 No. 02-2975
manages the subdivision and provides various services to
the homeowners. The other defendants, with the exception
of a corporation (and its president) that also provides
services and is alleged to have acted in cahoots with the
association in harassing the plaintiffs, are members of the
association; that is, they are the plaintiffs’ neighbors.
The complaint—our only source of facts, because the suit
was dismissed for failure to state a claim—alleges the follow-
ing: One of the plaintiffs is Jewish. The president of the asso-
ciation wrote “H-town property” on a wall of the plaintiffs’
property, “H-town” being short for “Hymie Town,” and he
further vandalized the property by damaging trees and plants
and cutting down strings of holiday lights. When the
plaintiffs posted flyers offering a reward for identifying the
vandal, the president destroyed or removed the flyers. To
further thwart the plaintiffs’ efforts to investigate the van-
dalizing of their property, the association destroyed minutes
of its board meetings and erased a tape recording of a meeting
at which the president had threatened to “make an example”
of the plaintiffs. The defendants applied chemicals to the
plaintiffs’ yard against the plaintiffs’ wishes and with adverse
effects on their health and peace of mind and adopted rules
restricting the plaintiffs’ lawful use of their property. The
entire campaign of harassment was caused or at least
influenced by the religion of the Jewish plaintiff. Of course
we do not vouch for any of these allegations, but for pur-
poses of this appeal we must assume that they are true.
A section of the Fair Housing Act makes it unlawful “to
coerce, intimidate, threaten, or interfere with any person in
the exercise or enjoyment of, or on account of his having
exercised or enjoyed, or on account of his having aided or
encouraged any other person in the exercise or enjoyment
of, any right granted or protected by section 3603, 3604,
3605, or 3606 of this title.” 42 U.S.C. § 3617. The only one of
No. 02-2975 3
the enumerated sections that is possibly relevant here is
section 3604, which makes it unlawful “(a) To refuse to sell
or rent after the making of a bona fide offer, or to refuse to
negotiate for the sale or rental of, or otherwise make una-
vailable or deny, a dwelling to any person because of race,
color, religion, sex, familial status, or national origin,” or
“(b) To discriminate against any person in the terms, con-
ditions, or privileges of sale or rental of a dwelling, or in the
provision of services or facilities in connection therewith,
because of race, color, religion, sex, familial status, or
national origin.” The language indicates concern with activ-
ities, such as redlining, that prevent people from acquiring
property. Oconomowoc Residential Programs, Inc. v. City of
Milwaukee, 300 F.3d 775 (7th Cir. 2002); NAACP v. American
Family Mutual Ins. Co., 978 F.2d 287 (7th Cir. 1992); Mitchell
v. Shane, 350 F.3d 39 (2d Cir. 2003); Hamad v. Woodcrest
Condominium Ass’n, 328 F.3d 224, 229-31 (6th Cir. 2003); San
Pedro Hotel Co. v. City of Los Angeles, 159 F.3d 470 (9th Cir.
1998); Hogar Agua y Vida en el Desierto, Inc. v. Suarez-Medina,
36 F.3d 177 (1st Cir. 1994). Our plaintiffs, however, are com-
plaining not about being prevented from acquiring property
but about being harassed by other property owners. So it is
difficult to see how they can have been interfered with in
the enjoyment of any right conferred on them by section
3604.
As a purely semantic matter the statutory language might
be stretched far enough to reach a case of “constructive evic-
tion,” which is one way to describe the present case (more
precisely, “attempted constructive eviction”). If you burn
down someone’s house you make it “unavailable” to him,
and “privileges of sale or rental” might conceivably be thought
to include the privilege of inhabiting the premises. Acts of
post-sale discrimination have been litigated successfully
under the Act in two reported cases, Trafficante v. Metropolitan
Life Ins. Co., 409 U.S. 205 (1972); Krueger v. Cuomo, 115 F.3d
4 No. 02-2975
487 (7th Cir. 1997), but in neither was the Act’s applicability
to such discrimination discussed—apparently the issue
hadn’t been raised. In several other cases the Act has been
held to forbid harassment amounting to constructive evic-
tion by analogy to “constructive discharge,” a form of dis-
crimination recognized in Title VII cases. DiCenso v. Cisneros,
96 F.3d 1004, 1008 (7th Cir. 1996); Neudecker v. Boisclair Corp.,
351 F.3d 361, 364-65 (8th Cir. 2003) (per curiam); Honce v. Vigil,
1 F.3d 1085, 1090 (10th Cir. 1993). But in none of these cases
did the court consider the difference in language between
the two statutes. None of the five cases contains a considered
holding on the scope of the Fair Housing Act in general or
its application to a case like the present one in particular.
Title VII protects the job holder as well as the job appli-
cant, so an employer who resorts to harassment to force an
employee to quit is engaged in job discrimination within the
meaning of the Act. See, e.g., Herrnreiter v. Chicago Housing
Authority, 315 F.3d 742, 744-45 (7th Cir. 2002). The Fair
Housing Act contains no hint either in its language or its
legislative history of a concern with anything but access to
housing. Bernard Schwartz, Statutory History of the United
States: Civil Rights Part II 1709-17, 1742-51, 1762, 1769 (1970);
Hearings before the Subcomm. on Housing & Urban Affairs of the
S. Comm. on Banking & Currency on S. 1358, S. 2114, and S.
2280, 90th Cong., 1st Sess. (1967), passim; 114 Cong. Rec.
S2274 (daily ed. Feb. 6, 1968) (statement of Sen. Mondale).
Behind the Act lay the widespread practice of refusing to
sell or rent homes in desirable residential areas to members
of minority groups. Since the focus was on their exclusion,
the problem of how they were treated when they were
included, that is, when they were allowed to own or rent
homes in such areas, was not at the forefront of congressio-
nal thinking. That problem—the problem not of exclusion
but of expulsion—would become acute only when the law
forced unwanted associations that might provoke efforts at
No. 02-2975 5
harassment, and so it would tend not to arise until the Act
was enacted and enforced. There is nothing to suggest that
Congress was trying to solve that future problem, an
endeavor that would have required careful drafting in order
to make sure that quarrels between neighbors did not
become a routine basis for federal litigation.
Reference to legislative history is criticized when it is used
to give a statute a reach that exceeds what its words suggest.
Our use here is the opposite; it is to confirm that the words
mean what they seem to mean.
So the plaintiffs have no claim under section 3604. And
this might seem to doom their claim under section 3617 as
well, because that section provides legal protection only
against acts that interfere with one or more of the other
sections of the Act that are referred to in section 3617, of
which the only one even remotely relevant to this case is
section 3604.
But this conclusion reckons without a regulation issued by
the Department of Housing and Urban Development that in
the name of section 3617 forbids among other things
“threatening, intimidating or interfering with persons in
their enjoyment of a dwelling because of the race, color,
religion, sex, handicap, familial status, or national origin of
such persons, or of visitors or associates of such persons.”
24 C.F.R. § 100.400(c)(2). The regulation cuts section 3617
loose from section 3604, contrary to the language of section
3617. Interference with “enjoyment of a dwelling,” forbidden
by the regulation, is something that can take place after the
dwelling has been acquired, though we know that section 3604
is not addressed to post-acquisition discrimination. The reg-
ulation may stray too far from section 3617 (which remember
is tied, so far as bears on the issues in this case, to section
3604) to be valid, though Gonzalez v. Lee County Housing
Authority, 161 F.3d 1290, 1304-05 and n. 43 (11th Cir. 1998),
6 No. 02-2975
the only appellate decision to address the issue, holds that
it is valid. But the defendants have not challenged the reg-
ulation’s validity and so its possible invalidity has been
forfeited as a ground upon which we might affirm the
district court. The defendants quote the regulation, but only
to observe, quite mistakenly, that it “simply reiterates the
language of section 3617.” The entire point is that it does
not. If it did, the defendants would be home free.
The remaining question is whether the conduct alleged in
the complaint amounts to “threatening, intimidating or
interfering” within the meaning of the statute and the
regulation. The defendants argue that it does not, because
it is far less ominous, frightening, or hurtful than burning a
cross in a neighbor’s front yard or assaulting the neighbor
physically. But that cannot be the test. There are other, less
violent but still effective, methods by which a person can be
driven from his home and thus “interfered” with in his
enjoyment of it. See, e.g., Krueger v. Cuomo, supra, 115 F.3d
at 490-91 (sexual harassment); Regional Economic Community
Action Program, Inc. v. City of Middletown, 294 F.3d 35, 43-44
(2d Cir. 2002) (economic pressure); Walker v. City of Lakewood,
272 F.3d 1114, 1126-31 (9th Cir. 2001) (same). Of course, to
repeat an earlier point, we do not want, and we do not think
Congress wanted, to convert every quarrel among neighbors
in which a racial or religious slur is hurled into a federal
case. But what is alleged in this case (as in the factually
similar case of Ohana v. 180 Prospect Place Realty Corp., 996 F.
Supp. 238, 239 (E.D.N.Y. 1998)) is a pattern of harassment,
invidiously motivated, and, because backed by the home-
owners’ association to which the plaintiffs belong, a matter
of the neighbors’ ganging up on them. We are far from a
simple quarrel between two neighbors or the isolated act of
harassment committed by the landlord in DiCenso v.
Cisneros, supra, 96 F.3d at 1006.
No. 02-2975 7
The case is affirmed in part, but for the reasons just ex-
plained it is reversed with regard to the section 3617 charge,
which we direct the district court to reinstate along with the
state law claims, which the court dismissed only because it
mistakenly believed that the complaint failed to state a
federal claim.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-4-04