Regains v. Chicago, No. 15-2444 (7th Cir. 2019)

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Justia Opinion Summary

Illinois law requires sex offenders to register with the police. Offenders with a fixed residence were required to register either every 90 days or annually; homeless offenders were to report weekly. Some Chicago officers thought the weekly requirement was burdensome and “steered” offenders to identify a residence. Officers directed Regains to a homeless shelter, which they listed as his permanent address, and to return for re-registration in 90 days. When he reported three months later, Regains was arrested on an “investigative alert,” because other officers had not been able to locate Regains at the address provided. Regains remained in custody 17 months before the Illinois trial court found him not guilty of failing to a report a change of address. Regains sued the city under 42 U.S.C. 1983. The district court dismissed the claim as time-barred under Illinois’ two-year statute of limitations for personal injury claims and found that the amended complaint lacked sufficient factual details to give fair notice. The Seventh Circuit reversed, concluding that the claim accrued when Regains was released from custody. The court remanded, noting that it will be difficult for Regains to amend his complaint to allege a policy or practice, widespread enough to constitute a custom and that high-ranking Department members knew of the differing practices and allowed them to continue.

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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 15-2444 PAUL REGAINS, Plaintiff-Appellant, v. CITY OF CHICAGO, Defendant-Appellee. ____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 14 C 9687 — James B. Zagel, Judge. ____________________ ARGUED APRIL 4, 2016 — DECIDED MARCH 13, 2019 ____________________ Before EASTERBROOK and HAMILTON, Circuit Judges, and PEPPER, District Judge. * The Illinois Sex O ender Registration Act (SORA) requires sex o enders to register with the police. Because he did not have a permanent address (he was homeless), Paul Regains followed the instructions of o cers who directed him to a * Of the Eastern District of Wisconsin, sitting by designation. 2 No. 15-2444 local homeless shelter (which they listed on his registration as his permanent address), and to return for re-registration in ninety days. When he appeared to report three months later, Chicago police o cers arrested Regains on an “investigative alert,” because other o cers had not been able to locate Regains at the address provided. Regains remained in custody seventeen months before the Illinois trial court found him not guilty of failing to a report a change of address. Regains sued the City of Chicago under 42 U.S.C. § 1983, claiming that it violated his rights under the Due Process Clause of the Fourteenth Amendment. The district court dismissed the case under Federal Rule of Civil Procedure 12(b)(6), nding that either the claim was time-barred under Illinois’ two-year statute of limitations for personal injury claims, or that it was barred by this court’s decision in Newsome v. McCabe, 256 F.3d 747, 751 (7th Cir. 2001), abrogated by Manual v. City of Joliet, 137 S. Ct. 911 (2017) (“Manuel I”). The district court also found that the amended complaint lacked su cient factual details to give the City fair notice, and that because Regains did not speci cally identify a particular constitutional violation, the City could not be held liable under Monell v. Dep’t. of Soc. Servs., 436 U.S. 658, 692 (1978). We reverse the district court’s decision that Regains’ claim was time-barred, and remand for further proceedings. I. Background In 2012, SORA required sex o enders to register in person within three days of establishing a residence or a temporary domicile in any county. 730 ILCS § 150/3(b) (2012). Sex o enders in the City of Chicago registered “at the Chicago Police Department Headquarters.” 730 ILCS § 150/3(a)(1). The law No. 15-2444 3 required sex o enders without a xed address or temporary domicile to report weekly to the chief of police in the municipality in which that person was located. 730 ILCS § 150/3. The plainti asserts that SORA required “persons with a xed abode” to report every ninety days, citing 730 ILCS § 150/6. Appellant’s Br. at 2. In fact, that section of the statute required a person who had been adjudicated to be sexually dangerous or was a sexually violent person to report every ninety days (and required such o enders to report weekly if they did not have a xed residence). “Any other person” required to register under the statute was required to report once a year. The record does not indicate whether Regains, had he had a xed residence, would have been subject to the ninety-day reporting interval or the one-year reporting interval. Either way, the law required homeless sex o enders to report more frequently than sex o enders with xed residences. Failure to comply with the provisions of the statute constituted a felony, for which there was strict liability. 730 ILCS § 150/10(a); People v. Molnar, 857 N.E.2d 209, 224 (Ill. 2006). By 2012, the Chicago police o cers assigned to sex offender registration/reporting duty felt that the weekly reporting requirement for homeless sex o enders had become burdensome. Some of those police o cers engaged in a widespread practice of steering homeless sex o enders to homeless shelters that would accept sex o enders, and directing the sex o enders to return with documentation showing the shelter as the sex o ender’s residence. This scheme had the e ect of providing homeless sex o enders with a “residence,” which meant that they were not subject to the weekly reporting requirement. The o cers who engaged in this steering 4 No. 15-2444 practice, and their supervisors, were aware that the number of persons registered at the shelters far exceeded the shelter’s capacity. In other words, they knew that the homeless sex offenders who listed the shelter as their “address” likely would not be able to remain there. Other Chicago police o cers assigned to registration duties disagreed with the steering practice. These other o cers visited homeless shelters that accepted sex o ender registrants and attempted to locate the registrant; if they could not locate the registrant at the shelter, the o cers would prepare an investigative alert, informing any Chicago police o cer who encountered the registrant that there was probable cause for arrest. Regains alleges that in April 2012, Chicago police o cers employed the steering practice when he attempted to register as a homeless sex o ender. He asserts that they directed him to a shelter, registered him as residing at that shelter, and instructed him to return for quarterly reporting and re-registration in July 2012. In early May 2012, two Chicago police o cers went to the shelter to look for Regains. They did not nd him, and they prepared a report for failure to register at that address. The next day, a Chicago police detective reviewed the report, visited the shelter without nding Regains, and issued an investigative alert informing other Chicago police o cers that there was probable cause to arrest Regains. On July 18, 2012, Regains reported as directed; Chicago police o cers arrested him under the investigative alert. The prosecutor charged Regains with two violations of 730 ILCS § 150/6—failure to register within three days after changing No. 15-2444 5 his address, and failure to report every ninety days. On September 4, 2012, Cook County Judge Thomas V. Gainer arraigned Regains and ordered him detained. Regains remained in custody until his December 3, 2012 trial—some seventeen months—at which time the judge found him not guilty. 1 Regains led his original § 1983 complaint in federal court on December 3, 2014. II. Discussion We review de novo a district court’s grant of a Rule 12(b)(6) motion to dismiss. Volling v. Kurtz Paramedic Servs., Inc., 840 F.3d 378, 382 (7th Cir. 2016) (citation omitted). “In construing the complaint, we accept all well-pleaded facts as true and draw reasonable inferences in the plainti s' favor.” Id. We may a rm on any ground that the record supports, as long as the district court adequately addressed that ground and the non-moving party had the opportunity to contest it. Thayer v. Chiczewski, 705 F.3d 237, 247 (7th Cir. 2012) (citation omitted). Regains argues that he was deprived of his liberty for seventeen months without due process of law, as a result of “the widespread practice within the Chicago police department towards homeless sex o enders.” Appellant’s Br. at 6. He asserts that the City violated his Fourteenth Amendment due process rights by engaging in conduct “in the nature of 1 The transcript of Regains’ trial indicates that he registered on April 17, 2012. App. to Appellee’s Br. at A27. He appeared at the police station on July 18, 2012, id. at A30, ninety-two days after the date he last registered, id. at A37. The trial judge stated that he could not tell from looking at the report date Regains had been given whether he was to report on July 16 or July 18, 2012, and made a nding that Regains was not guilty. Id. at A37. 6 No. 15-2444 malicious prosecution.” He has taken pains to avoid giving his personal injury claim a speci c label. The district court found that if Regains’ claim sounded in false arrest, it was time-barred, and that if it sounded in malicious prosecution, it was barred for other reasons. Regains sued under a federal statute—42 U.S.C. § 1983— but we look to the law of the state in which the personal injury occurred to determine the length of the statute of limitations. Wallace v. Kato, 549 U.S. 384, 387 (2007); Serino v. Hensley, 735 F.3d 588, 590 (7th Cir. 2013). Under Illinois law, a plainti must bring a personal injury action within two years after its accrual. Wallace, 549 U.S. at 387 (citing 735 ILCS § 5/13-202 (West 2003)). The question of when the cause of action accrues “is a question of federal law that is not resolved by reference to state law.” Wallace, 549 U.S. at 388 (emphasis in the original). Federal common law holds that a cause of action accrues when “the plainti has a ‘complete and present cause of action’”—in other words, when “the plainti can le suit and obtain relief.” Id. (quoting Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997)). Put another way, a personal injury claim raised under § 1983 accrues “when the plainti knows or has reason to know of the injury which is the basis of his action.” Serino, 735 F.3d at 591. Because there is “no single accrual rule for all § 1983 claims,” we must “use the rule that applies to the common-law cause of action most similar to the kind of claim the plainti asserts.” Devbrow v. Kalu, 705 F.3d 765, 767 (7th Cir. 2013). At the time of brie ng and oral argument, there was a debatable question as to whether Regains’ claim was time- No. 15-2444 7 barred. His assertion that he should not have been arrested and charged sounded like a claim for false arrest, or false imprisonment. His assertion that he was detained for seventeen months while awaiting trial on a charge that was unfounded sounded like a malicious prosecution claim. The accrual rule for false arrest/false imprisonment claims is di erent from the accrual rule for malicious prosecution claims. A claim for false arrest or false imprisonment accrues once the plainti is detained (or released) as a result of a lawful process. Wallace, 549 U.S. at 390-391. A cause of action for malicious prosecution “does not accrue until the criminal proceedings have terminated in the plainti ’s favor.” Heck v. Humphrey, 512 U.S. 477, 48 (1994). When he appealed, that di erence was critical for Regains. He was arraigned and detained by lawful process on September 4, 2012; under the false arrest/false imprisonment accrual rule, he would have had to le his § 1983 complaint by September 4, 2014. He did not le the complaint until December 3, 2014, three months later. In contrast, under the malicious prosecution accrual rule, Regains’ claim would have accrued on December 3, 2012—the date he was acquitted. Regains led his § 1983 complaint exactly two years after that date. If his claims properly fell into the false arrest/false imprisonment realm, his claim would have been time barred; if it fell into the malicious prosecution realm, it would have been timely. After oral argument, this court resolved the timing question. In Manuel v. City of Joliet, 903 F.3d 667, 670 (7th Cir. 2018) (“Manuel II”), petition for cert. led, (U.S. Feb. 22, 2019) (No. 181093), we held that a claim that a plainti was detained 8 No. 15-2444 without probable cause “accrues when the detention ends.” 2 Regains concedes that the o cers who arrested him had probable cause to believe that he violated SORA, but he has consistently argued that he seeks damages because he was “deprived of liberty without due process of law when he was held at the Cook County Jail until he was acquitted.” Appellant’s Br. at 13. Applying the principle of Manuel II to Regains’ argument that his seventeen-month detention for a crime that he was misled into committing was unconstitutional, we conclude that his claim accrued when he was released on December 3, 2012, and that his claim was timely led. This conclusion does not necessarily mandate remand, however, because the district court stated other bases for dismissing the case. The court also found that Regains’ amended complaint failed to identify speci c conduct on the City’s part that formed the basis for Regains’ claim that it violated his rights under the Fourteenth Amendment. Regains named only the City as a defendant; he did not sue individual o cers. The amended complaint was terse—six of its twenty paragraphs described how and why o cers steered homeless sex o enders to shelters. The complaint then alleged that when Regains tried to register, o cers steered him to a shelter, registered him at that shelter and required him to come back for 2 The Supreme Court has accepted certiorari in McDonough v. Smith, 2019 WL 166879 (No. 18-485). The petition presents the following question: “Whether the statute of limitations for a Section 1983 claim based on fabrication of evidence in criminal proceedings begins to run when those proceedings terminate in the defendant’s favor (as the majority of circuits has held) or whether it begins to run when the defendant becomes aware of the tainted evidence and its improper use (as the Second Circuit held below).” Petition for Writ of Certiorari, McDounough 2018 WL 5026294 (No. 18-845). The Court will hear argument on April 17, 2019. No. 15-2444 9 re-registration in three months. It alleged the facts surrounding Regains’ arrest and charging, and alleged that he stayed in custody until his trial and acquittal. The penultimate paragraph stated, “As a result of the foregoing, plainti was deprived of rights secured by the Fourteenth Amendments to the Constitution of the United States and incurred damages.” The amended complaint does not link speci c conduct to Regains’ assertion that his due process rights were violated. Other than identifying the City as an Illinois municipal corporation, it does not describe any conduct by the City. It describes the actions of the o cers who steered Regains to the shelter, the actions of the o cers who issued the investigative alert and the actions of the o cers who arrested him, but does not say which—if any—of these actions constitute conduct by the City that violated his due process rights. It says he “was charged” with a felony, and “remained” in custody until his acquittal, but does not attribute to the City or anyone else responsibility for the charges or his detention. It does not allege that police department o cials with policy-making authority knew about these practices and allowed them to continue. A plainti may remedy a de cient complaint by amending it, but the district court also questioned whether Regains could state a claim against the City at all. In brief comments at the end of its decision, the court noted that a municipality such as the City is subject to liability under § 1983 only if an o cial municipal policy caused the violation of the plainti ’s constitutional rights, citing Monell, 436 U.S. at 692. The court stated that in the absence of a constitutional violation, the City could not be held liable. Regains has not addressed the Monell question in his appellate briefs. 10 No. 15-2444 Because Regains has chosen to sue only the City, he must state a claim that the denial of his liberty for seventeen months was the result of the implementation or execution of “a policy statement, ordinance, regulation, or decision o cially adopted and promulgated by [the municipality’s] o cers,” or a “governmental ‘custom’ … .” Monell, 436 U.S. at 690. Allegations that the City is liable “on a respondeat superior theory” will not su ce. Id. at 691. Before this court, Regains has alleged that there was a “widespread practice within the police department of the City of Chicago to manipulate the registration process to force homeless sex o enders into violations of the Monitoring Act.” Appellant’s Brief at 6. He asserts that “[t]his practice was ‘so widespread and well-settled that it constitutes a custom or usage with the force of law even though it is not authorized by written law or express policy.’” Appellant’s Reply Brief at 2, quoting Rossi v. City of Chicago, 790 F.3d 729, 737 (7th Cir. 2015). Regains has presented no evidence to support these allegations; he never got the chance, because the district court dismissed the case at the pleading stage. Other plainti s have had the opportunity to present such evidence. In Beley v. City of Chicago, a class composed of “[a]ll persons who attempted to register under the Illinois Sex O ender Registration Act with the City of Chicago from December 6, 2010 to the date of entry of judgment and who were not permitted to register because they were homeless” alleged that the City had violated, among other provisions, the due process clause. Beley v. City of Chicago, Case No. 12-cv-9714, 2017 WL 77096, at *1 (N.D. Ill., Feb. 28, 2017), a ’d 901 F.3d 823 (7th Cir. 2018). The district court granted summary judgment in favor of the City on the due process claim. The court stated No. 15-2444 11 that its ruling turned on “one dispositive issue: whether Plainti s present su cient evidence of a ‘policy’ or ‘custom’ on the part of Defendant to support municipal liability.” Id. at *6. Viewing the evidence the plainti s had presented in the light most favorable to them, the court found that they “fail[ed] to raise a genuine issue of fact with respect to whether [Criminal Registration Section] personnel acted pursuant to an o cial policy or practice regarding the registration of homeless sex o enders.” Id. at *8. The court found that, at best, the plainti s had proven that on ten occasions, individual o cers may have engaged in unconstitutional behavior. Id. Although the plainti s appear to have presented a substantial amount of evidence in Beley, the court concluded that “the evidence does not present a triable issue of fact regarding whether there was a policy or widespread practice of denying SORA registration to sex o enders who lacked a xed address at the time of registration.” Id. at *10. “At most, Plainti s have shown ‘occasional lapses of judgment’ or ‘individual misconduct by police o cers,’ not ‘systemic problems’ or ‘institutional behavior.’” Id., quoting Rossi 790 F.3d at 737. The plainti s appealed; we a rmed on other grounds. Beley 901 F.3d at 826 (a rming on the ground that the ability to register under SORA is not a cognizable liberty interest). Another district court reached the same conclusion in a case involving individual plainti s. See Derfus v. City of Chicago, Case No. 13 C 7298, 2015 WL 1592558 (N.D. Ill., April 6, 2015). In granting summary judgment in favor of the City, the Derfus court concluded: The fact that the City registered more o enders as not having a xed residence or temporary domicile in two random time periods in 2014 12 No. 15-2444 than in two random time periods in prior years does not suggest that the City had a policy of refusing to register o enders with that status. Nor does the fact that it refused over a threeyear period to register six o enders as “homeless,” a term that does not appear in SORA and that is commonly used to refer to a much broader segment of people than those deemed by SORA to be lacking a xed residence or temporary domicile. Id. at *4. These cases raise doubts about whether Regains could amend his complaint to allege a widespread policy or practice, or marshal proof the proof at summary judgment that the Beley and Derfus plainti s could not. Even if he can allege that a practice existed and that it was widespread enough to constitute a custom, Monell requires more. Regains’ arguments and the very fact of his arrest and detention show that not all o cers followed the practice. He describes a schism between registering o cers who followed the steering practice and those who did not. To state a Monell claim, Regains will need to show that high-ranking members of the Chicago Police Department knew of the di ering practices and allowed them to continue. This may be a tall order, but we cannot conclude that allowing Regains to try would be an exercise in futility. A nal point: on appeal, Regains consistently has characterized his claim as a violation of his Fourteenth Amendment due process rights. At the time he led the appeal, that was his only option; our decision in Newsome, 256 F.3d at 750, precluded the argument that pretrial detention that occurred after the start of the judicial process violated the Fourth No. 15-2444 13 Amendment. Manuel I since has abrogated Newsome, holding that “the Fourth Amendment governs a claim for unlawful pretrial detention even beyond the start of legal process.” 137 U.S. at 920. In the post-Manuel I/Manuel II world, “the Fourth Amendment, not the Due Process Clause, is the source of the right in a § 1983 claim for unlawful pretrial detention, whether before or after the initiation of formal legal process.” Lewis v. City of Chicago, 914 F.3d 472, 479 (7th Cir. Jan. 23, 2019). III. Conclusion Because Regains timely filed his complaint, we reverse the district court’s dismissal of the complaint and remand for further proceedings consistent with this decision.

Primary Holding

Seventh Circuit reinstates a civil rights suit concerning Chicago police officers' handling of sex offender registration by homeless offenders.

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