evaluate a claim of qualified immunity, the court must engage in a two-step analysis.
First, the court determines whether Plaintiffs claim states a violation of his
constitutional rights. Then, the court determines whether those rights were clearly
established at the time the alleged violation occurred. See Wilson, 526 U.S. at 609;
Khuans v. Sch. Dist. 110, 123 F.3d 1010, 1018 (7th Cir. 1997). Only if the rights were
clearly established may the official be liable for monetary damages. See Wilson, 526
USS. at 609.

A clearly established right is one where “[t]he contours of the right [are]
sufficiently clear that a reasonable official would understand that what he is doing
violates that right.” Anderson, 483 U.S. at 640. “Because there is an almost infinite
variety of factual scenarios that may be brought into the courtroom, a plaintiffneed not
point to cases that are identical to the presently alleged violation.” Denius v. Dunlap,
209 F.3d 944, 950 (7th Cir. 2000). Nevertheless, an official will not be individually
liable unless “the contours of the right ... have been established so that the
unlawfulness of the defendant's conduct would have been apparent in light of existing
law.” Id., citing Cleveland-Perdue v. Brutsche, 881 F.2d 427, 480 (7th Cir. 1989), cert
denied, 498 U.S. 949 (1990).

Cc. Search and Seizure

The court turns to the question of whether Defendant Ginex’s alleged conduct

constitutes a violation of Plaintiffs’ constitutional rights. It is well-settled law that the

Fourth Amendment generally prohibits the warrantless search of a person’s home.


contacting Mrs. Sapyta to obtaining a search warrant, the court concludes that
Defendant is not entitled to qualified immunity.

Defendant argues further that the ongoing retention of Plaintiffs’ firearms poses
no constitutional problem because the Illinois Firearm Owners’ Identification Card Act
(“The Act”) provides that no person may possess a firearm in [Ilinois without possession
of a Firearm Owner’s Identification Card (“FOID”). (Def.’s Motion to Dismiss at 5,
citing 430 ILCS 65/2(a)(1).) The Act also allows for the seizure and revocation of FOID
cards belonging to persons who have been patients of a mental institution within the
past five years or whose mental condition poses a clear and present danger to the
cardholder or the community. (Id., citing 430 ILCS 65/8) and (f).) Defendant
contends that he warrants qualified immunity because Plaintiffs have not alleged that
Mr. Sapyta has a valid FOID. For purposes of this motion to dismiss, however, the
court will infer from Plaintiffs’ gun ownership and the silence on this point in the
parties’ pleadings that either one or both of the Plaintiffs had a valid FOID on January
12, 2001 and has one at the present time. Under the facts as alleged, the court
concludes that no reasonable officer would have taken permanent possession of Mr.
Sapyta’s firearms without at least determining whether he was legally authorized to
possess them. To take possession of the firearms without such a determination would
render the FOID requirement useless altogether. In any event, even if Mr. Sapyta
lacked a valid FOID card, a reasonable officer would not retain Plaintiffs other items,

ranging from coins to bows and knives.


With regard to the police department’s seizure of Plaintiffs possessions, it is
clearly established law that “a seizure of property occurs when there is meaningful
interference with an individual’s possessory interests in that property.” United States
v. Jacobsen, 466 U.S. 109, 113 (1984). The physical removal and ongoing retention of
a citizen’s property implicates the Fourth Amendment. Perry v. Sheahan, 222 F.3d
309, 316 (7th Cir. 2000) (“physical removal and retention” of firearms by police
implicated Fourth Amendment seizure concerns). Moreover, it is settled law that even
warrantless searches stemming from exigent circumstances must be “strictly
circumscribed by the exigencies which justify [their] initiation.” Mincey v. Arizona, 437
J.S. 385, 393 (1978) (no exigent circumstances when all inhabitants of apartment were
located prior to search). The alleged removal and retention of Plaintiffs’ personal
property can not be justified under these principles.

Having concluded that Plaintiffs have stated cognizable claims for both the
warrantless search of their property and the ensuing seizure of their property, the
court must now determine whether a reasonable police officer could have believed that
a warrantless search and seizure of the guns and other items was permissible on
January 12, 2001 in light of the potential threat that Mr. Sapyta posed to himself. As
noted above, the presumption against warrantless searches of homes is powerful and
well-known. On the facts before the court, no reasonable officer would have engaged
in such a search unless he believed that there were exigent circumstances excusing the
search. The officers on the scene, including Defendant Ginex, knew that Mr. Sapyta

had been taken away into protective custody for an undetermined period. The Village

6


Kyllo v. United States, 1218. Ct. 2038, 2041 (2001); Illinois v. Rodriguez, 497 U.S. 177,
181 (1990). Such searches are constitutionally permissible, however, when there is
probable cause and exigent circumstances create a compelling need for official action
and insufficient time to secure a warrant. United States v. Rivera, 248 F.3d 677, 680
(7th Cir. 2001). The Supreme Court has noted that exigent circumstances justifying
a warrantless search exist when (a) officers are in hot pursuit of a fleeing felon; (b)
destruction of evidence is imminent; (c) officers need to prevent a suspect’s escape; or
(d) there is a risk of danger to officers or others inside or outside of the dwelling.
Minnesota v. Olson, 495 U.S. 91, 100 (1990).

The court concludes that on the pleadings before it, there were not exigent
circumstances to justify the warrantless search of Plaintiffs’ home. The warning that
Dr. Raza gave the Village police apparently suggested that Mr. Sapyta was a potential
threat to himself. It follows logically, then, that once Mr. Sapyta was taken into
custody, the police were not confronted with a situation in which either they, the
public, or evidence were put at risk. This is not a case, for example, involving or
requiring a protective sweep. See generally Maryland v. Buie, 494 US 325, 327 (1990).
The police certainly would have had time to secure the premises, obtain a search
warrant, or seek consent for a search from Ms. Sapyta before entering Plaintiffs’ home.
Cf. United States v. Johnson, 22 F.3d 674, 680 (6th Cir. 1994) (no exigent
circumstances where police rescued kidnap victim from kidnapper’s apartment but had
time to secure premises and secure search warrant). On the facts before the court, the

warrantless search constituted a constitutional violation.

5


clearly establishing the proposition that police may not justify a warrantless seizure
of weaponry merely on the grounds that it belongs to a potentially dangerous owner.
Johnson, 22 F.3d at 680 (disallowing warrantless emergency search for firearms in
apartment rented by kidnapper who had captured fourteen-year-old girl kidnappee and
had threatened to kill her and her family if she escaped). Defendant invites the court
to read United States v. Hendrix, 595 F.2d 883 (D.C. Cir. 1979) as requiring a different
result, but the case is readily distinguishable. In Hendrix, the D.C. Circuit upheld a
warrantless search for and seizure of a suspect’s sawed-off shotgun, in part because
there were exigent circumstances, including the fact that the presence of the shotgun
posed a threat to the suspect’s wife and baby. Id. at 885-86. The court also specifically
noted, however, that (a) the suspect’s wife, who had joint custody over the searched
apartment, consented to the search; (b) there was a threat of imminent removal or
destruction of the shotgun; (c) the shotgun was criminal contrabrand; (d) the searching
officers were informed on the scene that the suspect was in possession of criminal
contrabrand; (e) the suspect had already fired the shotgun that night; and (f) the
searching officers were aware of the suspect’s prior criminal conduct with firearms. Id.
at 885-86. None of these factors applies to the case at hand. In light of the strong
presumption against warrantless domestic searches and seizures, the fact that the
Defendant knew Mr. Sapyta was being taken into protective custody, the absence of
any suggestion that Mr. Sapyta posed a threat to anyone but himself, the fact that the
alleged seizures appear to extend beyond the scope of what even a search warrant

would contemplate, and the possibility of pursuing other measures ranging from

8


Minute Order Form,(06/97)

United States District Court, Northern District of Minois

Name of Assigned Judge Rebecca allmeyer Sitting Judge if Other
or Magistrate Judge a than Assigned Judge
yy
CASE NUMBER O1C 5912 DATE 12/20/2001
CASE David G. Saptya, et al. vs. Riccardo F. Ginex, et al.
TITLE

of the motion being presented.}

Lin the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3ré party plaintiff, and (b) state briefly thenature

MOTION:

DOCKET ENTRY:

qd) oO Filed motion of [ use listing in “Motion” box above.]

(2) o Brief in support of motion due

Q) a Answer brief to motion due___. Reply to answer briefdue___

(4) Q Ruling/Hearingon set fora

(5) Oo Status hearing[held/continued to] [set for/re-set for]on set for at

(6) oO Pretrial conference[held/continued to] [set for/re-set for}on__ssetfor_ at
(7) a Trial{set for/re-set for]on_____at

(8) ao [Bench/Jury trial] [Hearing] held/continued to at

(9) Q This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

CFRCP4(m) [1] General Rule21 OFRCP41(a)(1) OO FRCP41(a)(2).

Notitied counsel by telephone. date docketed

\S

docketing deputy initials

Docketing to mail notices

Mail AO 450 form.

Copy to judge/magistrate judge.

12/20/2001

(10) [Other docket entry] Defendant Ginex’s motion (Doc. No. 4-1) is denied. Defendant Ginex is
directed to answer within 21 days. Status conference is set for January 22, 2002 at 9:30 a.m.
Parties are directed to be prepared to propose a discovery schedule.

al [For further detail see order attached to the original minute order.|

No notices required, advised in open court. 4 Document
Number
No notices required. umber of notices
V | Notices mailed by judge's staff. DEC 2 LRN

\\

date mailed notice

courtroom PULL. / ‘
BTV deputy’s BTV
initials

Date/time received in
cental Clerk’s Office sraitng deputy nts



CONCLUSION
For the reasons set out above, Defendant Ginex’s motion (Doc. No. 4-1) is denied.
Defendant Ginex is directed to answer within 21 days. Status conference is set for
January 22, 2002 at 9:30 am. Parties are directed to be prepared to propose a

discovery schedule.

ENTER:

Dated: December 20, 2001

REBECCA R.
United States District Judge

10


police had no reason to suspect any threats to themselves or the public health until Mr.
Sapyta returned home. There was a possibility that Mr. Sapyta would be detained,
medicated, or both. A reasonable officer on the scene would undoubtedly have worried
that Mr. Sapyta would return before a warrant or consent to a search could be secured,
but this concern could reasonably have been remedied by posting an officer at the
house until a warrant had been obtained and a search conducted. Significantly, on the
record before the court, Defendant and his fellow officers made no effort to obtain a
warrant before searching Plaintiffs’ home. See United States v. Salava, 978 F.2d 320,
325 (7th Cir. 1992) (noting that “there may be some value in requiring police to apply
for a warrant even when exigent circumstances exist”). Without greater factual
development, the court is unable to conclude that the Village police lacked time to
pursue a warrant. In light of these considerations, the court concludes that the
warrantless search of Plaintiffs’ home was a clear violation of their constitutional
rights.

Nor do the subsequent seizures withstand scrutiny. It is clear, for example, that
no reasonable officer could have believed that removing Plaintiffs’ coins and diamond
ving was either necessary or constitutional. Cf. Brindley v. Best, 192 F.3d 525 (6th Cir.
1999) (qualified immunity not warranted where officers seized items beyond scope of
search warrant). Similarly, even officers believing that David Sapyta constituted a
threat to himself could not have justified taking possession of items such as Plaintiffs’
rifle scope and bow case, neither of which Mr. Sapyta could have used to harm himself.
With regard to Plaintiffs’ knives, bow, arrows, ammunition and guns, there is case law

7


DISCUSSION
A. Standard for a Motion to Dismiss
A motion to dismiss a complaint pursuant to FED. R. CIV. P. 12(b)(6) does not
test whether the plaintiff will prevail on the merits but instead tests whether the
claimant has properly stated a claim. See Pickrel v. City of Springfield, 45 F.3d 1115,
1118 (7th Cir. 1995) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). In deciding
a motion to dismiss, the court will consider all well-pleaded allegations of the

complaint as true, and will draw all reasonable inferences in favor of the plaintiff.
Zinermon v. Burch, 494 U.S. 118, 118 (1990); Tobin for Governor v. Illinois State Bd.
of Elections, 268 F.3d 517, 521 (7th Cir. 2001). Dismissal is only proper if it appears
beyond doubt that plaintiff can prove no set of facts in support of his claim that would
entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Slaney v.
International Amateur Athletic Fed’n, 244 F.3d 580, 597 (7th Cir. 2001).
B. Qualified Immunity

In their complaint, Plaintiffs allege constitutional violations by Defendants
Village and Ginex. Defendant Ginex argues that the claims against him are barred by
the doctrine of qualified immunity. Under the doctrine of qualified immunity, state
officials “are shielded from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable
person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Anderson

v. Creighton, 483 U.S. 635, 638 (1987); Wilson v. Layne, 526 U.S. 603, 609 (1999). To


Raza, who was then Plaintiff David Sapyta’s psychiatrist. (Id. [{ 6-7.) After receiving
this call, the police officers went to the house, directed Plaintiff David Sapyta to step
outside, and took him into custody upon suspicion that he had a mental illness and
posed a reasonable threat to inflict serious physical harm upon himself because of his
illness. Ud. {| 7-8.) While being taken into custody, Mr. Sapyta told the police that
he did not want anyone going into the house, and Village police officer Scalzetti
assured him that no one would do so. (Ud. { 9.) Soon after Mr. Saptya was removed
from the scene (the complaint does not state where he was taken), Village police
officers searched the house under the orders and direction of Defendant Ginex, who
was present at the scene. (Id. { 10.) This search was carried out without a warrant.
Ud. J 12.) During the search, Village police took possession of a collection of “Liberty
Walking Half Dollars” in an antique wooden cheese box; a diamond ring with a gold
wedding band; approximately nine guns and rifles with cases; a can of live shotgun and
rifle ammunition; a wide-angle rifle scope; three knives, including one with a seven-
inch blade; a bow and bow case; and nine arrows. (Id. { 17; 1/12/01 Downers Grove
Police Property Control Form, Ex. A to Compl.) These items belonged to the Plaintiffs,
either jointly or individually. (Compl. { 17.) Despite requests from Plaintiffs, the
Village police have not returned any of the seized items. (/d. 4] 18.) Plaintiffs filed the

complaint initiating this action on August 1, 2001.


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS NOCKETED
EASTERN DIVISION 4
DEC 21 200

DAVID G. SAPTYA and
LYNN M. SAPYTA,

Plaintiff,

v. No. 01 C 5912

RICCARDO F. GINEX, in his
individual capacity, and the
VILLAGE OF DOWNERS GROVE,

an Illinois municipal corporation,

Judge Rebecca R. Pallmeyer

Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiffs David and Lynn Saptya bring this § 1983 action against the Village
of Downers Grove (“the Village”) and Village Police Chief Riccardo Ginex (“Ginex”) in
his individual capacity. Plaintiffs allege that Defendants violated the Fourteenth
Amendment by searching Plaintiffs’ home without a warrant or probable cause and by
seizing Plaintiffs’ personal property. Plaintiffs also allege that under Illinois law, the
Village has unlawfully converted Plaintiffs’ personal property. Defendant Ginex now
moves to dismiss, claiming qualified immunity for his actions. For the reasons set
forth below, Defendant’s motion is denied.

FACTUAL BACKGROUND

Plaintiffs, a husband and wife, jointly own and occupy a single-family residence
(‘the house”) at 1114 Maple Avenue in Downers Grove, [linois. (Complaint {{ 3, 5.)

On January 12, 2001, the Village police received a phone call from Dr. Mumtaz F.