## In the 

# United States Court of Appeals
For the Seventh Circuit

____________

No. 04-4162

ANITA C HRISTENSENand R OBERT ALTY , Plaintiffs-Appellants

, v.

C OUNTY OF B OONE , I LLINOIS , and E DWARD 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 D ECEMBER 1, 2005—D ECIDED MARCH 21, 2007

____________

Before E ASTERBROOK , Chief Judge , and R IPPLE and K

ANNE , Circuit Judges

. P ER C URIAM . 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 Depu ty 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 Count y, was responsible for the Deputy’s actions. The complaint also contains a pendent2 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. Withrespect 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 acceptall well-pleaded allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiffs. SeeMarshall-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 thatNo. 04-4162 3

culminated in a face-to-face altercation at some point in 2001. According to the allegati ons of the complaint, after that incident, Deputy Krieger engaged in “a pattern of onduty conduct designed to ha rass, annoy, and intimidate”Officer Alty and his girlfriend, Anita Christensen. Specifically, the couple alleges that Deputy Krieger repeatedly followed them, both individu ally and with each other, while they drove on Boone County streets; parked hissquad 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 th at Officer Alty and Ms. Christensen had filed numerou s complaints with Deputy Krieger’s supervisors at the Boone County Sheriff’s Department, but that the De partment had not taken any action to correct the situat ion. Finally, the complaint alleges that Deputy Kriege r’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 Deputy4 No. 04-4162

Krieger. Second, the court held that the plaintiffs’ “intimate association” claim failed because they had not alleged any actual interference withtheir relationship. In the court’s view, the plaintiffs’ assertions of feeling annoyed and harassed did not allege animpact on the relationship itself. Finally, the cour t dismissed the plaintiffs’ intentional infliction of emot ional 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 de fined by Illinois courts.”

II. DISCUSSIONWe 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’ co mplaint must contain only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fe d. R. Civ. P. 8(a)(2). Apartfrom several limited exceptions, a “short and plain statement” exists when the compla int pleads a “bare minimum [of] facts necessary toput 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 isNo. 04-4162 5

unnecessary.”). The Supreme Court also has instructed that, in civil rights cases a lleging municipal liability, afederal 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 onpleading 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 pleadingsystem, 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 withst and a motion to dismiss for failure to state a claim is ou tline 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 (7thCir. 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 framewor k 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 , 2356 No. 04-4162

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

, 446 U.S. 635, 640 (1 980). 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 interferen ce from the state, a rightthey describe as a liberty interest protected by the Fourteenth Amendment’s Due Proc ess 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 addre ss each constitutional claim in turn.

1. Fourth Amendment The plaintiffs’ first constitutional claim is covered by a specific constitutional provi sion, the Fourth Amendment. When the violation of a specif ic 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. SeeKatz v. United States , 389 U.S. 347 (1967); see alsoCalifornia 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 theNo. 04-4162 7

Fourth Amendment must showthat 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 plai ntiffs allege that Deputy Krieger followed them in his squad car as they drove on Boone County roads and sat ou tside businesses that thecouple patronized. This alleged behavior did not constitute a Fourth Amendment search. Driving on public streets is one of the activiti es 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 Amen dment “seizure” may occur when police intentionally rest rict the freedom of a person to move about in public. SeeBrower 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, theyhave 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, “communi cate[ ] to a reasonable person that he [is] not at liberty to ignore the police presence and8 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 en counter with the plaintiff is nonphysical, the plaintiff mu st have submitted to the show of authority to estab lish 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 authorit y.” (emphasis omitted)). In light of these requirem ents, the theory that the plaintiffs were “seized” when Deputy Krieger followed them in his squad car is inco nsistent 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 inwhich Deputy Krieger’s actions—the following, the stalking in the parking lot—woul d lead reasonable persons to feel that they had to stay where they were for fear of force or arrest. SeeDriebel v. Milwaukee, 298 F.3d 622, 642 (7th Cir. 2002) (determining that a police station employee was not seized whenhe was ordered to work overtime and “stand by” for th ree 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 ob ey”). Indeed, the complaint asserts that Deputy Kriege r 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 restrict ion on their freedom Deputy Krieger attempted to impose. Id. (“A seizure occursNo. 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 anindividual’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 submit s to the show of lawful authority . . . .”). 1

Nor do the plaintiffs’ other allegations state a claimunder 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, andDeputy Krieger had no particular vantage point unavailable to the public generally. SeeUnited 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 Four th 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 item s 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 friendof 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 th rough 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.3d1225, 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 consti tutional claim asserts thedeprivation of a liberty interest in violation of the Fourteenth Amendment’s Due Proc ess Clause. More specifically, the couple asserts thatDeputy 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 Clau se. In doing so, we keepin mind the Supreme Court’s admonition that the concept of substantive due proce ss must be expanded reluctantly “ ‘because the guidepos ts 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, 125No. 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 th e 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 liberti es 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 plaint iffs’ exercise of that right. Zablocki v. Redhail , 434 U.S. 374, 386-87 & n.12 (1978). Finally, if a fundamental ri ght has been impaired, weask 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. 212 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 plaint iffs invoke their constitutional right to engage in “intimate association.” In more concrete terms, the plaintiffs claim that they should have been free from Deputy Kriege r’s interference with theirchoice 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 th is 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, Robertsexplained, “the Court hasrecognized a right to associate for the purpose of engaging in those activities prote cted by the First Amendment— speech, assembly, petition fo r the redress of grievances, and the exercise of religion.” Id. at 618. In the second set of decisions, “the Court ha s concluded that choices to enter into and maintain cert ain 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 el ement 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. Unit ed 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 Robertscategory and, therefore, must be analyzed under the Due Process Clause as a liberty interest, rather than as a re lationship formed for first amendment purposes. 3Intimate associations protected by the Due Process Clause, Roberts said, “have played a critical role in the culture an d 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.

InLawrence 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 interferen ce. 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 Consti tution. So we had assumed in Montgomery , 410 F.3d at 938. 414 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 “substan tially” 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 disab ility-benefits program cut off support when beneficiarie s married. The Court held that this does not violate th e Constitution, even though it could be seen as a penalty on marriage (especially so when both spouses are disabl ed), because it reflects a view that one spouse usua lly supports the other. The program’s incidental effect onmarriage 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 adop ted because of, rather than in spite of or with indifference to, that result). This is why being fired from a public job (after anyhearing that may be required) does not create constitutional difficulties if it tu rns 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 butNo. 04-4162 15

cannot invoke principles of substantive due process. Defamation by a public official, not itself a violation of the Constitution, seePaul v. Davis , 424 U.S. 693 (1976), does not turn into a constitutionaltort if the defamed party becomes impotent or loses the respect of his children. In these situations, and many ot hers, the effect on intimate association is incidental tothe defendant’s activities.

The district court dismisse d 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 toprivacy [and] their right to freedom of association.” Thes e allegations suffice to put the defendants on notice of the plaintiffs’ grievance.

We need not decide whethe r the complaint’s allegations about Deputy Krieger’s motive or objective are sufficient substantively, because the adverse consequences of his actions are not sufficien tly serious. Official conduct that represents an abuse of o ffice (as oppose d to, say, the implementation of a statut ory duty) violates the substantive component of the du e 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 judi cial conscience even on the assumption that the pursuit was unnecessary and an arrest could have been effect ed in some other way. The16 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 Kr ieger did not invade their bedroom or commit mayhem. Plaintiffs recognized who was trailing them. T hus even if Deputy Krieger’s presence was ominous, plaintiffs ha d 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 stat e court—yet we know from Castle Rock v. Gonzales , 545 U.S. 748 (2005), that, even had such an order been issu ed 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 to rt litigation conduct of the sort in which Deputy Krieger is alleged to have engaged.

Plaintiffs say that Deputy Krieger’s conduct is constitutionally obnoxious becaus e 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. SeeVillage 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 underLewis but also would go far toward constitutiona lizing state law, whichLewis said must not happen. As th e complaint describes events, Deputy Krieger was acting outs ide 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 catego ry (a large category) of acts that offend state law withou t offending the Constitution too. This is another point thatLewis 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 incl udes 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 tortof 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 rise18 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 “ext reme and outrageous,” and because the complaint did not allege a severe emotional injury. In making this determination, the district courtappears to have applied Illinois’ fact-pleading requirements for civil complaints. Ye t 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 th e “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 pract ice differ, federal rules adopted under the Rules Enablin g 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 diversit y 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 I llinois rules of pleading are binding on the federal courts.”).

Although the district cour t was correct in observing that the complaint did not co ntain 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’ factua l allegations described the principal events giving rise to the suit an d attached themto a right of action cognizable under state law. The plaintiffs’ state-law tort claim mustbe reinstated. Because the federal claims have been reso lved, the district court should relinquish supplemental jurisdic tion 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 cons istent with this opinion.

R IPPLE , Circuit Judge , concurring in part and dissenting in part. I join the opinion ofthe court except in its treatment of the plaintiffs’ claim that Deputy Krieger’s conduct deprived them of their ri ght to intimate association. In my view, the district co urt 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 follo wing 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 gi ves a more accurate summary of the complaint in its prefatory description of the case. Seeslip. op. at 3. A.

At the outset, it is import ant 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. SeeFed. 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 o rdinarily 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 ac tions as “[w]atching people from a squad car.” Slip op. at16. 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, th e 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 theyare 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 nearPlaintiff 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 di fficulties 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 relationsh ip “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 allegati ons 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 Su preme Court has made clear that the scope of substantiv e 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 do main, plays an important role in the protection of individu al liberty. As we noted in Tun

, the essence of substantive due process is protection of the individual from the exercise of governmental powerwithout 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 go vernment 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 thatlacks built-in guidelines, the task is hardly beyond ca reful judicial implementa-No. 04-4162 23

tion. First of all, we mustremember that, while the “shocks the conscience” standa rd seems at first glance to be highly subjective, the Supre me Court has made it quite clear that it is objective innature. In determining whatkind of conduct can be said to shock the judicial conscience, judges invariably star t by “asking whether or not the objective character of ce rtain conduct is consistentwith 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 ques tion “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 ar ea 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 wi th 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 circu mstances and those situations24 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 showthat the officer deliberately harmed the victim.’ Where a defendant has ‘the luxury ofproceeding in a deliberate fashion . . . deliberate indifference may be sufficient toshock 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.3d564, 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 governme ntal power, when directed against the exercise of a f undamental 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 allegation s of the complaint, Deputy Krieger embarked upon a scheme of retaliation against the plaintiffs in which he us ed the power and authority ofNo. 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 office rs’ actions find opprobrium inthe 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 likel y 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 diffi cult for this couple to maintain a romantic relation ship that our constitution protects as a fundamental right. 2 The panel majority fails to recognize that, und er the prevailing case law, such a perverse use of police authority surely shocks thejudicial 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 power26 No. 04-4162

and its failure to characterize the conduct as conscience shocking will have a direct an d 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 send s a surely unintended, but nevertheless unwelcome, message that minimizes the significance of a raw use of municipal police power. The task of the dedicated offi cers 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