In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 04-4162

ANITA CHRISTENSEN and ROBERT ALTY,

Plaintiffs-Appellants,

v.

COUNTY OF BOONE, ILLINOIS, and EDWARD KRIEGER,

Defendants-Appellees.

____________

Appeal from the United States District Court for the

Northern District of Illinois, Western Division.

No. 04 C 50219—Philip G. Reinhard, Judge.

____________

ARGUED DECEMBER 1, 2005—DECIDED MARCH 21, 2007

____________

Before EASTERBROOK, Chief Judge, and RIPPLE and

KANNE, Circuit Judges.

PER CURIAM. Anita Christensen and Robert Alty, an

unmarried couple and plaintiffs in this civil rights action,

allege that they have been stalked and harassed unjustifiably by Edward Krieger, a Deputy Sheriff of Boone County,

Illinois. Specifically, they allege that Deputy Krieger

interfered with the couple’s constitutional right to be

free from unreasonable searches and seizures and their

right to intimate association. They further allege that the

Deputy’s employer, Boone County, was responsible for the

Deputy’s actions. The complaint also contains a pendent
2 No. 04-4162

state law claim asserted solely against Deputy Krieger

for intentional infliction of emotional distress.

Deputy Krieger and Boone County filed a motion to

dismiss for failure to state a claim upon which relief can be

granted. See Fed. R. Civ. P. 12(b)(6). The district court

granted the defendants’ motion; it held that the plaintiffs

had failed to plead either a cognizable constitutional

violation or, with respect to the state law count, the

elements of a common law tort. The plaintiffs now appeal

this ruling. We agree with the district court that the

Fourth Amendment claim is meritless and hold that it

was properly dismissed. With respect to the claim based

on the right to intimate association and the claim alleging

intentional infliction of emotional distress, we believe that

the pleading requirements of Rule 8 have been satisfied

but that the claim fails on the merits. We reinstate the

plaintiffs’ claims under state law. Accordingly, we affirm

in part and reverse in part the judgment of the district

court.

I. BACKGROUND

A. Facts

Because this case comes to us from a dismissal under

Rule 12(b)(6), we must accept all well-pleaded allegations

in the complaint as true and draw all reasonable inferences in favor of the plaintiffs. See Marshall-Mosby v.

Corporate Receivables, Inc., 205 F.3d 323, 326 (7th Cir.

2000).

Robert Alty is a police officer for the City of Belvidere,

Illinois. In 1998 he arrested a driver for operating a

vehicle while under the influence of alcohol. That driver

turned out to be a friend or relative of Edward Krieger, a

Deputy Sheriff of Boone County, Illinois. This incident

resulted in animosity between the two officers that
No. 04-4162 3

culminated in a face-to-face altercation at some point in

2001. According to the allegations of the complaint, after

that incident, Deputy Krieger engaged in “a pattern of onduty conduct designed to harass, annoy, and intimidate”

Officer Alty and his girlfriend, Anita Christensen. Specifically, the couple alleges that Deputy Krieger repeatedly

followed them, both individually and with each other,

while they drove on Boone County streets; parked his

squad car in front of Ms. Christensen’s place of employment in order to watch her; and sat in his police car

outside of businesses that the plaintiffs were visiting in

an effort to cause the couple “difficulties with the proprietors of such establishments.”

Ms. Christensen and Officer Alty claimed that Deputy

Krieger’s actions were performed under color of state law

and deprived them of their rights to privacy, freedom of

association, freedom from unreasonable searches and

seizures and “substantive due process rights under the

First, Fourth, Fifth, and Fourteenth Amendments.” The

complaint further alleges that Officer Alty and Ms.

Christensen had filed numerous complaints with Deputy

Krieger’s supervisors at the Boone County Sheriff’s

Department, but that the Department had not taken any

action to correct the situation. Finally, the complaint

alleges that Deputy Krieger’s conduct constituted the

intentional infliction of emotional distress under Illinois

law.

B. District Court Proceedings

The district court dismissed the plaintiffs’ action for

failure to state a claim upon which relief could be granted.

See Fed. R. Civ. P. 12(b)(6). First, with respect to the

plaintiffs’ Fourth Amendment claim, the court concluded

that the complaint failed to identify any legitimate expectation of privacy that had been invaded by Deputy
4 No. 04-4162

Krieger. Second, the court held that the plaintiffs’ “intimate association” claim failed because they had not alleged

any actual interference with their relationship. In the

court’s view, the plaintiffs’ assertions of feeling annoyed

and harassed did not allege an impact on the relationship itself. Finally, the court dismissed the plaintiffs’

intentional infliction of emotional harm claim because they

had not pleaded a severe emotional injury and because

Deputy Krieger’s behavior, as described in the complaint,

was “nowhere near to being extreme or outrageous as that

element of the tort is defined by Illinois courts.”

II. DISCUSSION

We must decide de novo whether the plaintiffs’ complaint states a claim upon which relief could be granted.

See Williams v. Seniff, 342 F.3d 774, 792 (7th Cir. 2003).

A motion under Rule 12(b)(6) challenges the sufficiency

of the complaint, and dismissal of an action under this

rule is warranted only if “no relief could be granted under

any set of facts that could be proved consistent with the

allegations.” DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir.

2000) (internal quotation marks omitted). Under the

notice pleading regime of the Federal Rules of Civil

Procedure, the plaintiffs’ complaint must contain only “a

short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Apart

from several limited exceptions, a “short and plain statement” exists when the complaint pleads a “bare minimum

[of] facts necessary to put the defendant on notice of the

claim so that he can file an answer.” Higgs v. Carver, 286

F.3d 437, 439 (7th Cir. 2002); see also Kolupa v. Roselle

Park Dist., 438 F.3d 713, 714 (7th Cir. 2006) (“It is enough

to name the plaintiff and the defendant, state the nature

of the grievance, and give a few tidbits (such as the date)

that will let the defendant investigate. A full narrative is
No. 04-4162 5

unnecessary.”). The Supreme Court also has instructed

that, in civil rights cases alleging municipal liability, a

federal court may not apply a heightened pleading standard more stringent than the usual pleading requirements of Rule 8(a). See Leatherman v. Tarrant County,

507 U.S. 163, 165 (1993).

Together, these rules ensure that claims are determined

on their merits rather than on pleading technicalities. See

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002)

(“The liberal notice pleading of Rule 8(a) is the starting

point of a simplified pleading system, which was adopted

to focus litigation on the merits of a claim.”). For this

reason, we do not require “an exhaustive recitation of the

facts or elements” of a plaintiff ’s claim. Lekas v. Briley,

405 F.3d 602, 606 (7th Cir. 2005). Indeed, “[a]ll the

complaint need do to withstand a motion to dismiss for

failure to state a claim is outline or adumbrate a violation

of the statute or constitutional provision upon which the

plaintiff relies and connect the violation to the named

defendants.” Brownlee v. Conine, 957 F.2d 353, 354 (7th

Cir. 1992) (internal citations and quotation marks omitted). Rule 8(a)’s notice pleading standard applies to

pendant state law claims that are pleaded in federal court.

See, e.g., McDonald v. Household International, Inc., 425

F.3d 424, 427 (7th Cir. 2005).

A. Constitutional Violations

Within this liberal framework of notice pleading, the

plaintiffs seek to state a claim against Deputy Krieger and

Boone County under 42 U.S.C. §1983. In order to state a

claim under §1983, the plaintiffs must allege that a

government official, acting under color of state law,

deprived them of a right secured by the Constitution or

laws of the United States. Brokaw v. Mercer County, 235
6 No. 04-4162

F.3d 1000, 1009 (7th Cir. 2000); see also Gomez v. Toledo,

446 U.S. 635, 640 (1980). Here, the plaintiffs allege that

Deputy Krieger and Boone County violated the couple’s

Fourth Amendment right to be free from unreasonable

searches and seizures. The complaint also alleges that

the defendants deprived them of their right to associate

intimately without interference from the state, a right

they describe as a liberty interest protected by the Fourteenth Amendment’s Due Process Clause. Deputy Krieger

and Boone County do not dispute that their alleged actions

were taken “under color of state law,” Brokaw, 235 F.3d

at 1009. Instead, the parties’ disagreement surrounds

whether the plaintiffs have alleged the violation of a

federal right. We shall address each constitutional claim

in turn.

1. Fourth Amendment

The plaintiffs’ first constitutional claim is covered by a

specific constitutional provision, the Fourth Amendment.

When the violation of a specific right is alleged, such a

claim “must be analyzed under the standard appropriate

to that specific [constitutional] provision.” County of

Sacramento v. Lewis, 523 U.S. 833, 843 (1998). The Fourth

Amendment protects “[t]he right of the people to be

secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures.” Only government activity that constitutes either a “search” or a

“seizure” is regulated by the Fourth Amendment.

A search takes place when the state intrudes upon an

individual’s legitimate interest in privacy. See Katz v.

United States, 389 U.S. 347 (1967); see also California v.

Greenwood, 486 U.S. 35, 39 (1988). This expectation

must be one that society is willing to accept. See Katz,

389 U.S. at 353. Furthermore, a plaintiff invoking the
No. 04-4162 7

Fourth Amendment must show that he has attempted to

keep the object of the search private. Id. at 351 (“[T]he

Fourth Amendment protects people, not places. What a

person knowingly exposes to the public, even in his own

home or office, is not a subject of Fourth Amendment

protection.”); United States v. Dunkel, 900 F.2d 105, 107

(7th Cir. 1990).

In the present case, the plaintiffs allege that Deputy

Krieger followed them in his squad car as they drove on

Boone County roads and sat outside businesses that the

couple patronized. This alleged behavior did not constitute a Fourth Amendment search. Driving on public

streets is one of the activities during which a person does

not enjoy a legitimate interest in privacy. United States v.

Knotts, 460 U.S. 276, 281 (1983) (“A person traveling in

an automobile on public thoroughfares has no reasonable

expectation of privacy in his movements from one place

to another.”). Nor can individuals reasonably expect

privacy in the parking lot of a business. See Dunkel, 900

F.2d at 107. In observing the couple’s public movements,

Deputy Krieger did not conduct a search in violation of

the Fourth Amendment.

Nor were the plaintiffs ever “seized” within the meaning

of the Fourth Amendment. We recognize that, in certain

circumstances, a Fourth Amendment “seizure” may occur

when police intentionally restrict the freedom of a person

to move about in public. See Brower v. County of Inyo, 489

U.S. 593, 596 (1989). For example, if law enforcement

officers attempt to stop a fleeing suspect by forcing his

automobile off the road, they have conducted a seizure

for purposes of the Fourth Amendment. Id. at 597. This

type of seizure occurs, however, only if two conditions are

met. First, the officer must, through physical force or a

show of authority, “communicate[ ] to a reasonable person

that he [is] not at liberty to ignore the police presence and
8 No. 04-4162

go about his business.” Florida v. Bostick, 501 U.S. 429,

437 (1991) (internal quotation marks omitted); see also

United States v. Packer, 15 F.3d 654, 657 (7th Cir. 1994).

Second, when the officer’s encounter with the plaintiff is

nonphysical, the plaintiff must have submitted to the

show of authority to establish that a seizure has taken

place. See California v. Hodari D., 499 U.S. 621, 626

(1991) (“An arrest requires either physical force (as

described above) or, where that is absent, submission to

the assertion of authority.” (emphasis omitted)).

In light of these requirements, the theory that the

plaintiffs were “seized” when Deputy Krieger followed

them in his squad car is inconsistent with the allegations

of the complaint. The alleged actions by Deputy Krieger

were nonphysical. Therefore, to be a seizure, the Deputy

must have communicated reasonably to the plaintiffs that

they were not free to move. We cannot hypothesize from

the allegations contained in the complaint a scenario in

which Deputy Krieger’s actions—the following, the stalking in the parking lot—would lead reasonable persons to

feel that they had to stay where they were for fear of

force or arrest. See Driebel v. Milwaukee, 298 F.3d 622,

642 (7th Cir. 2002) (determining that a police station

employee was not seized when he was ordered to work

overtime and “stand by” for three and one-half hours in the

police garage, because there was “no evidence suggesting

that he would have been prevented from leaving the

garage had he refused to obey”). Indeed, the complaint

asserts that Deputy Krieger followed the plaintiffs repeatedly, meaning that they continued to go about their daily

business in spite of being followed and watched. These

allegations cannot describe a Fourth Amendment “seizure”

because they tell us that the plaintiffs, in fact, did not

submit to whatever restriction on their freedom Deputy

Krieger attempted to impose. Id. (“A seizure occurs
No. 04-4162 9

1 As the Supreme Court has explained:

[A] Fourth Amendment seizure does not occur whenever

there is a governmentally caused termination of an

individual’s freedom of movement (the innocent passerby), nor even whenever there is a governmentally

caused and governmentally desired termination of an

individual’s freedom of movement (the fleeing felon), but

only when there is a governmental termination of

freedom of movement through means intentionally

applied.

Brower v. County of Inyo, 489 U.S. 593, 596-97 (1989) (emphasis

in original).

only when a person submits to the show of lawful

authority . . . .”).1

Nor do the plaintiffs’ other allegations state a claim

under the Fourth Amendment. Ms. Christensen complained of being watched by Deputy Krieger as she

went about her duties as an employee of a local gas

station. At these moments, however, she did not enjoy a

legitimate expectation of privacy. In her job at the gas

station, she appeared in plain view of the public, and

Deputy Krieger had no particular vantage point unavailable to the public generally. See United States v. Gonzalez,

348 F.3d 543, 547 (9th Cir. 2003) (holding that a hospital

employee caught on video in the mailroom of the hospital

enjoyed no legitimate expectation of privacy). Thus,

where Ms. Christensen’s job exposed her movements to

the public generally, the Fourth Amendment is no bar to

her being watched by police officers. See United States v.

Sandoval-Vasquez, 435 F.3d 739, 743 (7th Cir. 2006)

(holding that no search occurred when police officers

entered an open business); United States v. Tolar, 268 F.3d

530, 532 (7th Cir. 2001) (noting that a chain link fence

surrounding a business did not engender a reasonable

expectation of privacy in items visible through the fence).
10 No. 04-4162

Finally, the complaint describes an incident in which

Deputy Krieger searched a cell phone belonging to a friend

of Officer Alty to find out if the two recently had communicated. Like the others, this incident cannot supply the

basis for a Fourth Amendment claim because Officer Alty

had no legitimate expectation of privacy in a cell phone

belonging to someone else. Rakas v. Illinois, 439 U.S. 128,

134 (1978) (“A person who is aggrieved by an illegal

search and seizure only through the introduction of

damaging evidence secured by a search of a third person’s

premises or property has not had any of his Fourth

Amendment rights infringed.”); Young v. Murphy, 90 F.3d

1225, 1236 (7th Cir. 1996) (“The right against unreasonable searches and seizures is a personal right and generally may not be submitted on behalf of others.”). The

plaintiffs’ Fourth Amendment claims properly were

dismissed.

2. Intimate Association

The plaintiffs’ other constitutional claim asserts the

deprivation of a liberty interest in violation of the Fourteenth Amendment’s Due Process Clause. More specifically, the couple asserts that Deputy Krieger’s conduct,

and the County’s tacit approval of that conduct, unjustifiably impaired the plaintiffs’ fundamental right to associate intimately with one another. To assess this assertion, we employ the basic framework for claims that

arise out of the substantive component of the Fourteenth

Amendment’s Due Process Clause. In doing so, we keep

in mind the Supreme Court’s admonition that the concept of substantive due process must be expanded reluctantly “ ‘because the guideposts for responsible decisionmaking in this uncharted area are scarce and openended.’ ” Washington v. Glucksberg, 521 U.S. 702, 720

(1997) (quoting Clark v. Harker Heights, 503 U.S. 115, 125
No. 04-4162 11

2 When, as in the present case, a plaintiff complains of abusive

executive action, this “conscience shocking” test determines

liability, rather than the traditional strict scrutiny standard used

to measure the constitutionality of legislative acts. See County of

Sacramento v. Lewis, 523 U.S. 833, 846-47 (1997) (clarifying

this distinction). The “shocks the conscience” standard works to

distinguish the due process guarantee from traditional standards

of tort liability, so that the Fourteenth Amendment does not

become a “ ‘font of tort law.’ ” Id. at 848 (quoting Paul v. Davis,

424 U.S. 693, 701 (1976)); see also Khan v. Gallitano, 180 F.3d

829, 836 (7th Cir. 1999) (denying constitutional claims because

(continued...)

(1992)); see also University of Michigan v. Ewing, 474 U.S.

214, 225-26 (1985).

Our first step is to provide a “careful description” of the

interest said to have been violated. Doe v. City of Lafayette,

377 F.3d 757, 768 (7th Cir. 2004) (citing Glucksberg, 521

U.S. at 721). Then, we must determine whether that

interest is “fundamental”—that is, whether it is so deeply

rooted and sacrosanct that no amount of process would

justify its deprivation. Glucksberg, 521 U.S. at 720-21

(“[T]he Due Process Clause specially protects those

fundamental rights and liberties which are, objectively,

deeply rooted in this Nation’s history and tradition . . . .”

(internal quotation marks omitted)). Once we are satisfied that a fundamental right is at stake, we then determine whether the government has interfered “directly” and

“substantially” with the plaintiffs’ exercise of that right.

Zablocki v. Redhail, 434 U.S. 374, 386-87 & n.12 (1978).

Finally, if a fundamental right has been impaired, we

ask whether the governmental action can find “reasonable justification in the service of a legitimate governmental objective,” or if instead it more properly is “characterized as arbitrary, or conscience shocking, in a constitutional sense.” Lewis, 523 U.S. at 846-47.2
12 No. 04-4162

(...continued)

“[t]he defendants’ tortious acts, which subject them to possible

liability under state law, are not so extreme as to shock the

conscience”). Whether something less than intentional conduct

“shocks the conscience” varies depending on the context of the

alleged violation. Id. at 850 (discussing how a prison official’s

“deliberate indifference” may shock the conscience when he

denies a prisoner medical treatment, but not when he uses force

upon a prisoner to restore order).

In the present case, the plaintiffs invoke their constitutional right to engage in “intimate association.” In more

concrete terms, the plaintiffs claim that they should have

been free from Deputy Krieger’s interference with their

choice to enter into a non-marital romantic relationship. The Supreme Court frequently has recognized the

constitutional stature of the freedom to enter into and

carry on certain intimate associations. In Roberts v. United

States Jaycees, 468 U.S. 609 (1983), the Court delivered a

comprehensive discussion of this right. At the outset, the

Court observed that, in prior cases, it had described the

freedom to associate in “two distinct senses.” Id. at 617. In

the first line of cases, Roberts explained, “the Court has

recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment—

speech, assembly, petition for the redress of grievances,

and the exercise of religion.” Id. at 618. In the second set

of decisions, “the Court has concluded that choices to

enter into and maintain certain intimate human relationships must be secured against undue intrusion by the

State because of the role of such relationships in safeguarding the individual freedom that is central to our

constitutional scheme.” Id. at 617-18. In this second

category of decisions, “freedom of association receives

protection as a fundamental element of personal liberty”

under the Due Process Clause. Id. at 618; see also Montgomery v. Stefaniak, 410 F.3d 933, 937 (7th Cir. 2005).
No. 04-4162 13

3 Indeed, the allegations of the plaintiffs’ complaint make clear

that the relationship between Ms. Christensen and Officer Alty

is not one entered into for the purpose of “speech, assembly,

petition for the redress of grievances, [or] the exercise of religion.” Roberts v. United States Jaycees, 468 U.S. 609, 618 (1983).

4 See also, e.g., Anderson v. City of Lavergne, 371 F.3d 879, 882

(6th Cir. 2004) (a couple is engaged in a constitutionally-protected intimate association when they were living together, were

romantically and sexually involved, and were monogamous);

(continued...)

The plaintiffs’ relationship, as they assert, fits best

within the second Roberts category and, therefore, must

be analyzed under the Due Process Clause as a liberty

interest, rather than as a relationship formed for first

amendment purposes.3

 Intimate associations protected by

the Due Process Clause, Roberts said, “have played a

critical role in the culture and traditions of the Nation by

cultivating and transmitting shared ideals and beliefs;

they thereby foster diversity and act as critical buffers

between the individual and the power of the State.”

Roberts, 468 U.S. at 618. Additionally, these relationships bestow “the ability independently to define one’s

identity that is central to any concept of liberty.” Id.

at 619.

In Lawrence v. Texas, 539 U.S. 558 (2003), the Court

held that private homosexual relationships are a form of

intimate conduct protected as a liberty interest against

unreasonable public interference. This is so, the Court

held, whether or not the participants are married. It is

impossible to see how an unmarried heterosexual couple

in a long-term relationship could receive less protection.

We therefore conclude, on the authority of Lawrence, that

the plaintiffs’ relationship is a form of “intimate association” protected by the Constitution. So we had assumed in

Montgomery, 410 F.3d at 938.4
14 No. 04-4162

(...continued)

Wilson v. Taylor, 733 F.2d 1539, 1544 (11th Cir. 1984). But cf.

Michael H. v. Gerald D., 491 U.S. 110 (1989) (father of a child

born from an adulterous relationship is not constitutionally

entitled to parental rights when the mother is still in a lawful

marriage and that couple chooses to raise the child as its own);

Marcum v. McWhorter, 308 F.3d 635, 640-41 (6th Cir. 2002)

(an adulterous relationship is not an intimate association).

We next must consider whether Deputy Krieger interfered “directly” and “substantially” with the plaintiffs’

right to associate intimately. Zablocki, 434 U.S. at 387.

The Constitution prevents fundamental rights from being

aimed at; it does not, however, prevent side effects that

may occur if the government is aiming at some other

objective. That much is clear from Califano v. Jobst, 434

U.S. 47 (1977). A federal disability-benefits program cut off

support when beneficiaries married. The Court held

that this does not violate the Constitution, even though it

could be seen as a penalty on marriage (especially so

when both spouses are disabled), because it reflects a

view that one spouse usually supports the other. The

program’s incidental effect on marriage when both spouses

are disabled, the Court held, differs from the sort of

penalty that occurs when a law is designed to penalize

the fundamental interest. Cf. Personnel Administrator of

Massachusetts v. Feeney, 442 U.S. 256, 279 (1979) (a

government intends to achieve a particular result only

when the law has been adopted because of, rather than

in spite of or with indifference to, that result).

This is why being fired from a public job (after any

hearing that may be required) does not create constitutional difficulties if it turns out that the ex-employee

becomes moody and makes the family miserable; likewise the spouse of someone run over by a garbage truck

may have a loss-of-consortium claim under state law but
No. 04-4162 15

cannot invoke principles of substantive due process.

Defamation by a public official, not itself a violation of the

Constitution, see Paul v. Davis, 424 U.S. 693 (1976), does

not turn into a constitutional tort if the defamed party

becomes impotent or loses the respect of his children. In

these situations, and many others, the effect on intimate

association is incidental to the defendant’s activities.

The district court dismissed the plaintiffs’ intimateassociation claim because, in its view, “[t]he alleged

conduct of [Deputy] Krieger simply does not rise to the

level of preventing plaintiffs from having a meaningful

relationship.” To the extent that the district court demanded a more complete factual narrative in the complaint, it required more than is appropriate under Fed. R.

Civ. P. 8(a). The plaintiffs’ complaint alleges that Deputy

Krieger acted “with the intent to cause Plaintiffs harm

in their employment, as well as in their relationships

with various businesses in Boone County, and finally,

with each other” (emphasis added). It then went on to

allege that Deputy Krieger’s actions, in fact, “interfered

with the Plaintiffs’ rights to privacy [and] their right to

freedom of association.” These allegations suffice to put

the defendants on notice of the plaintiffs’ grievance.

We need not decide whether the complaint’s allegations about Deputy Krieger’s motive or objective are

sufficient substantively, because the adverse consequences

of his actions are not sufficiently serious. Official conduct

that represents an abuse of office (as opposed to, say, the

implementation of a statutory duty) violates the substantive component of the due process clause only if it

“ ‘shocks the conscience.’ ” Russ v. Watts, 414 F.3d 783, 789

(7th Cir. 2005) (quoting Lewis, 523 U.S. at 846-47). In

Lewis the Court held that a death from a high-speed

pursuit does not shock the judicial conscience even on the

assumption that the pursuit was unnecessary and an

arrest could have been effected in some other way. The
16 No. 04-4162

Court stated that “only the most egregious” conduct may

be condemned under its approach. 523 U.S. at 846.

Watching people from a squad car is very far indeed

from “the most egregious” conduct in which a deputy

sheriff can engage. Deputy Krieger did not invade their

bedroom or commit mayhem. Plaintiffs recognized who

was trailing them. Thus even if Deputy Krieger’s presence

was ominous, plaintiffs had the security of knowing

where to turn for redress if Deputy Krieger should decide

to take more aggressive steps. They could have sought a

restraining order from state court—yet we know from

Castle Rock v. Gonzales, 545 U.S. 748 (2005), that, even

had such an order been issued and ignored, state rather

than federal courts would be the right forum for enforcement.

Lewis calls for judicial modesty in implementing a

federal program of constitutional torts that lie outside

any specific clause of the Constitution. A modest role

means leaving to ordinary tort litigation conduct of the

sort in which Deputy Krieger is alleged to have engaged.

Plaintiffs say that Deputy Krieger’s conduct is constitutionally obnoxious because it is harmful yet unjustified by any legitimate governmental interest. That’s

just another way to say that the conduct is tortious, but

Lewis holds that substantive due process does not

replicate state tort law. 523 U.S. at 848-49. The language

of “legitimate governmental interests” summons up the

rational-basis inquiry under the equal protection clause,

yet plaintiffs have not advanced a class-of-one (or class-oftwo) claim under the equal protection clause. See Village

of Willowbrook v. Olech, 528 U.S. 562 (2000); Lauth v.

McCollum, 424 F.3d 631 (7th Cir. 2005). Equal-protection

analysis must be kept distinct from substantive claims

under the Due Process Clause.
No. 04-4162 17

Asking whether the defendant had a “legitimate governmental interest” not only would depart from the “most

egregious conduct” inquiry under Lewis but also would go

far toward constitutionalizing state law, which Lewis

said must not happen. As the complaint describes events,

Deputy Krieger was acting outside the scope of his duties,

disreputably and shamefully. But it is established that a

violation of state law does not automatically violate the

federal Constitution too. See Archie v. Racine, 847 F.2d

1211 (7th Cir. 1988) (en banc) (collecting cases). It is

essential to recognize a category (a large category) of acts

that offend state law without offending the Constitution

too. This is another point that Lewis made. See 523 U.S.

at 848-49 (conscience-shocking conduct is a very small

portion of the misbehavior actionable under tort law).

In sum, the complaint includes enough descriptive

matter to show that the claim is not sound under federal

law.

3. Municipal Liability

Because we have determined that all of plaintiffs’ claims

under federal law were properly dismissed, there can be

no §1983 liability for Boone County either.

B. The State-Law Tort Claim

Finally, we must decide whether the district court

properly dismissed the plaintiffs’ state-law tort claim.

Illinois law recognizes the tort of intentional infliction of

emotional distress, which was pleaded by the plaintiffs in

Count III of their complaint. See McGrath v. Fahey, 533

N.E.2d 806, 809 (Ill. 1988). Among other requirements, a

plaintiff’s emotional distress must be “severe,” and the

defendant’s conduct “extreme and outrageous,” to give rise
18 No. 04-4162

to liability for this tort. See Public Fin. Corp. v. Davis, 360

N.E.2d 765, 767-68 (Ill. 1976).

In the district court’s view, the plaintiffs’ tort claim

failed because the complaint did not allege that Deputy

Krieger’s conduct was “extreme and outrageous,” and

because the complaint did not allege a severe emotional

injury. In making this determination, the district court

appears to have applied Illinois’ fact-pleading requirements for civil complaints. Yet this suit is in federal

rather than state court, and each sovereign may apply its

own procedural rules in its own courts. Rule 8 does not

require plaintiffs to plead the “elements” of legal theories,

or facts corresponding to each element. See Swierkiewicz,

534 U.S. at 510-11; Bartholet v. Reishauer A.G., 953 F.2d

1073, 1077-78 (7th Cir. 1992).

When state and federal practice differ, federal rules

adopted under the Rules Enabling Act prevail. See, e.g.,

Hanna v. Plumer, 380 U.S. 460 (1965); Walker v. Armco

Steel Corp., 446 U.S. 740 (1980). This means, in particular,

that when federal courts entertain claims under state

law—whether under the diversity jurisdiction of 28 U.S.C.

§1332 or, as here, the supplemental jurisdiction of 28

U.S.C. §1367—it is not necessary to plead facts matching

elements of legal theories. See Hefferman v. Bass, 467 F.3d

596, 599 (7th Cir. 2006); AXA Corporate Solutions v.

Underwriters Reinsurance Corp., 347 F.3d 272, 277 (7th

Cir. 2003) (“Parties might prefer the notice-pleading

regime of the Federal Rules of Civil Procedure over the

fact-pleading approach that prevails in Illinois courts,

but no one thinks that the Illinois rules of pleading are

binding on the federal courts.”).

Although the district court was correct in observing

that the complaint did not contain all of the facts that

would be necessary to prevail, “a filing under Rule 8 is not

supposed to do that.” Hoskins v. Poelstra, 320 F.3d 761,
No. 04-4162 19

764 (7th Cir. 2003). Instead, the complaint “should be

‘short and plain’ and suffices if it notifies the defendant of

the principal events.” Id. (quoting Fed. R. Civ. P. 8(a)(2)).

Here, the plaintiffs’ factual allegations described the

principal events giving rise to the suit and attached them

to a right of action cognizable under state law. The plaintiffs’ state-law tort claim must be reinstated. Because the

federal claims have been resolved, the district court should

relinquish supplemental jurisdiction so that the state-law

claims may be resolved in state court. 28 U.S.C.

§1367(c)(3).

III. CONCLUSION

For the foregoing reasons, we affirm the district court’s

judgment to the extent that it dismissed the plaintiffs’

federal claims, but we vacate the decision to dismiss the

balance of the action with prejudice. The case is remanded

for further proceedings consistent with this opinion.

RIPPLE, Circuit Judge, concurring in part and dissenting

in part. I join the opinion of the court except in its treatment of the plaintiffs’ claim that Deputy Krieger’s conduct deprived them of their right to intimate association.

In my view, the district court erroneously dismissed this

claim at this early stage of the proceedings. Accordingly,

I respectfully dissent from this portion of the court’s

disposition and, in the following sections, shall explain

why I believe that the panel majority opinion is both

factually and legally in error.
20 No. 04-4162

1 Notably, the panel majority gives a more accurate summary of

the complaint in its prefatory description of the case. See slip. op.

at 3.

A.

At the outset, it is important to note the procedural

posture of the case as it comes to us. The district court

dismissed this claim for failure to state a claim upon which

relief can be granted. See Fed. R. Civ. P. 12(b)(6). Like the

district court, we therefore must take all the well-pleaded

allegations of the complaint as true. See Hintosh v.

Herman M. Finch Univ. of Health Sci./The Chicago

Med. Sch., 167 F.3d 1170, 1173 (7th Cir. 1999). Indeed, we

must construe those allegations in a light most favorable

to the plaintiffs. See Lee v. City of Chicago, 330 F.3d 456,

459 (7th Cir. 2003). In a civil rights action such as this

one, we cannot require that the plaintiffs set forth their

claim with any more specificity than required for any other

claim. Although our circuit at one time made such a

demand upon litigants, see Sivard v. Pulaski County, 959

F.2d 662, 667 (7th Cir. 1992) (“This Court demands that

plaintiffs suing a municipal body under § 1983 plead with

greater specificity than might ordinarily be required.”), the

Supreme Court has made it clear that there is no legal

justification for such a requirement, see Leatherman v.

Tarrant County, 507 U.S. 163, 168 (1993).

In its analysis of the claim,1

 the panel majority simply

characterizes the Deputy’s actions as “[w]atching people

from a squad car.” Slip op. at 16. The complaint, on the

other hand, provides a more disturbing account of the

Deputy’s alleged actions; it paints a picture of a far more

pervasive intrusion into the lives and the relationship of

the plaintiffs. Specifically, the complaint alleges in paragraph 12 that Deputy Krieger engaged “in a pattern of onduty conduct designed to harass, annoy, and intimidate”
No. 04-4162 21

the plaintiffs by engaging in, among other things, the

following actions:

A. Repeatedly following the Plaintiffs while they

are driving lawfully to and from their destinations, both individually as well as together,

and while they are engaged in lawful conduct;

B. Repeatedly parking his squad car at or near

Plaintiff CHRISTENSON’s [sic] place of employment and conducting surveillance of her

lawful activities, as well as monitoring her

lawful conduct while employed as a Clerk at

Kelly Williamson Mobil Co.;

C. Abandoning service calls and traffic stops to

follow the Plaintiffs upon recognizing that they

are in the vicinity of where he is located;

D. Parking his squad car outside of businesses

where Plaintiffs’ vehicles are parked when

they are patronizing said businesses, in an

effort to cause them difficulties with the proprietors of such establishments.

R.3 at 4. Most importantly, the complaint alleges specifically that the Deputy carried out this “pervasive plan of

intimidation” with the specific intent to harm the plaintiffs in their relationship “with each other.” Id. The

allegations set forth above do not simply describe an

individual sitting in a police car watching individuals

from afar. Rather, the allegations describe a police officer

not only stalking a couple as they go about performing

the daily tasks of living in a community, but also stalking in a manner designed to intrude upon and to injure

their relationship.
22 No. 04-4162

B.

My colleagues are quite right to emphasize that claims

based on the concept of substantive due process must be

approached with great care and circumspection. As our

own case law reflects, the Supreme Court has made clear

that the scope of substantive due process is very limited.

See, e.g., Tun v. Whitticker, 398 F.3d 899, 902 (7th Cir.

2005) (citing Washington v. Glucksberg, 521 U.S. 702

(1997)). This reluctance is grounded, in part, in the

realization that “guideposts for responsible decisionmaking

in this unchartered area are scarce and open-ended.”

Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992).

It also finds roots in our reluctance to fix the boundaries

of due process in a way that intrudes into the state’s

proper domain of fashioning principles of private tort

law. The Due Process Clause is intended as a “limitation

of the State’s power to act, not as a guarantee of certain

minimal levels of safety and security.” DeShaney v.

Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 195

(1989).

Nevertheless, the concept of substantive due process

remains an important part of our constitutional jurisprudence and, in its limited domain, plays an important role

in the protection of individual liberty. As we noted in Tun,

the essence of substantive due process is protection of the

individual from the exercise of governmental power without reasonable justification. See Tun, 398 F.3d at 902.

In the context of the action of law enforcement authorities,

the situation that we face in this case, “[i]t is most often

described as an abuse of government power which ‘shocks

the conscience.’ ” Id. (quoting Rochin v. California, 342

U.S. 165, 172 (1952)).

Despite the dangers inherent in the implementation of

a constitutional standard that lacks built-in guidelines,

the task is hardly beyond careful judicial implementa-
No. 04-4162 23

tion. First of all, we must remember that, while the

“shocks the conscience” standard seems at first glance to

be highly subjective, the Supreme Court has made it quite

clear that it is objective in nature. In determining what

kind of conduct can be said to shock the judicial conscience, judges invariably start by “asking whether or not

the objective character of certain conduct is consistent

with our traditions, precedents, and historical understanding of the Constitution and its meaning.” County of

Sacramento v. Lewis, 523 U.S. 833, 857 (1998) (Kennedy,

J., concurring); see also id. at 847-48 n.8. The court must

ask whether the conduct in question “can be said to have

found historical acceptance, or at least tolerance, among

traditional executive practices.” Galdikas v. Fagan, 342

F.3d 684, 690 n.3 (7th Cir. 2003), abrogated on other

grounds by Spiegla v. Hull, 371 F.3d 928, 941-42 (7th Cir.

2004). The determination, of course, also must include

an “objective assessment” of the necessities of contemporary law enforcement, an area in which “the police must

be given substantial latitude and discretion.” County of

Sacramento, 523 U.S. at 857 (Kennedy, J., concurring).

Although negligent action never can be sufficient to meet

the “shocks the conscience” standard, “actions intended

to injure in some way unjustifiable by any governmental

interest” are those most likely to rise to the conscienceshocking level. Id. at 849. In assessing the particular

governmental conduct at issue, a court cannot view that

conduct in abstracto. It is important that all the facts

and circumstances of the situation be considered. See

Miller v. City of Philadelphia, 174 F.3d 368, 375 (3d Cir.

1999).

Usually, a court is faced with the task of assessing

conduct that took place in the course of undertaking

official duties. In such a context, it is often important to

differentiate between situations in which the state actor

is acting under exigent circumstances and those situations
24 No. 04-4162

in which the state actor is working at a more deliberate

pace. “Where a defendant is ‘confronted with a hyperpressurized environment such as a high-speed chase . . .

it is usually necessary to show that the officer deliberately

harmed the victim.’ Where a defendant has ‘the luxury of

proceeding in a deliberate fashion . . . deliberate indifference may be sufficient to shock the conscience.’ ” Kaucher

v. County of Bucks, 455 F.3d 418, 426 (3d Cir. 2006)

(quoting Estate of Smith v. Marasco, 430 F.3d 140, 153 (3d

Cir. 2005)); see also, e.g., Armstrong v. Squadrito, 152 F.3d

564, 581 (7th Cir. 1998) (holding that deliberate indifference of jailors to prisoner’s repeated complaints, over many

days, that he was being held without a hearing shocked

the conscience).

Although courts usually are asked to assess the actions of a government official who is performing official

duties, a court sometimes is faced with a situation in

which an officer has not simply acted unreasonably in the

execution of his duties but has used his office not in

connection with any official duty but for his own purposes.

Such an abuse of governmental power, when directed

against the exercise of a fundamental liberty interest, is

an arbitrary abuse of power that shocks the conscience.

See Hawkins v. Holloway, 316 F.3d 777, 787 (8th Cir.

2003). Such conduct, “intended to injure in some way

unjustifiable by any government interest,” is the sort of

conduct “most likely to rise to the conscience-shocking

level.” County of Sacramento, 523 U.S. at 849; see also

Remer v. Burlington Area Sch. Dist., 286 F.3d 1007, 1013

(7th Cir. 2002); Neal v. Fulton County Bd. of Educ., 229

F.3d 1069, 1075 (11th Cir. 2000).

The case before us clearly falls within this last category.

According to the allegations of the complaint, Deputy

Krieger embarked upon a scheme of retaliation against

the plaintiffs in which he used the power and authority of
No. 04-4162 25

2 My colleagues liken the present situation to the one present

in County of Sacramento v. Lewis, 523 U.S. 833 (1988). In doing

so, they fail to recognize a fundamental difference that was

very apparent to the Supreme Court. County of Sacramento

involved the dangerous chase of a suspect who had ignored the

lawful command of police authorities to stop. The actions of the

police officers in that case, while professionally substandard and

worthy of severe criticism, were not intentional and were

committed in the course of official activity undertaken in exigent

circumstances. Nor did the officers’ actions find opprobrium in

the historic traditions of this country: “Neither our legal traditions nor the present needs of law enforcement justify finding

a due process violation when unintended injuries occur after the

police pursue a suspect who disobeys their lawful order to stop.”

Id. at 858 (Kennedy, J. concurring). Although substantive due

process analysis must steer a wide berth around traditional

principles of tort law, see id. at 848, “conduct intended to injure

in some way unjustifiable by any government interest is the

sort of official action most likely to rise to the conscience-shocking level,” id. at 849; see also Daniels v. Williams, 474 U.S. 327,

331 (1986).

his office to injure their relationship. This systematic

vendetta had no conceivable legitimate governmental

purpose. It amounted to the raw use of the power—power

that comes with a badge, a service revolver, and the power

to arrest—in order to make it difficult for this couple to

maintain a romantic relationship that our constitution

protects as a fundamental right.2

 The panel majority

fails to recognize that, under the prevailing case law,

such a perverse use of police authority surely shocks the

judicial conscience just as it shocks our national conscience.

Today’s decision also will have a very practical and

harmful effect on municipal governance throughout this

circuit. The panel majority’s failure to recognize the

situation here as a willful abuse of governmental power
26 No. 04-4162

and its failure to characterize the conduct as conscience

shocking will have a direct and immediate effect on efforts

to maintain discipline and professionalism in the countless number of small municipal police forces that dot our

landscape. This is no easy task for those who have the

responsibility of county and municipal leadership today.

The ravages of undue political influence and the lack of

financial resources for both recruitment and training

make the burden of those in leadership positions a heavy

one indeed. Today, the highest federal court in this region

of the United States sends a surely unintended, but

nevertheless unwelcome, message that minimizes the

significance of a raw use of municipal police power. The

task of the dedicated officers who command those departments just became more difficult.

I respectfully dissent.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—3-21-07