In the
United States Court of Appeals
For the Seventh Circuit

No. 00-4207

Robert Anthony Johnson,

Plaintiff-Appellant,

v.

City of Evanston, Illinois, et al.,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 4659--William J. Hibbler, Judge.

Submitted April 23, 2001--Decided May 11, 2001



  Before Easterbrook, Manion, and Diane P.
Wood, Circuit Judges.

  Easterbrook, Circuit Judge. Robert
Johnson took his car to Doc Able’s Auto
Clinic in Evanston to check a leak. On
being told that costly repairs were
necessary, he instructed the Clinic not
to do the work and set off to retrieve
his car. When he arrived, however, the
Clinic told him that the work had been
done anyway and that the bill was more
than $950. Johnson refused to pay, and
the Clinic allowed him to drive home
after the parties agreed to resolve their
dispute in court. Five days later,
however, the Clinic had someone steal
Johnson’s car. (We use the word "steal"
advisedly. Illinois does not permit auto
mechanics to "repossess" cars, as secured
lenders may do under the Uniform
Commercial Code. See Leavitt v. Charles
R. Hearn, Inc., 19 Ill. App. 3d 980, 312
N.E.2d 806 (1st Dist. 1974).) With the
vehicle in its possession, the Clinic
phoned Johnson and demanded $1,937 for
repairs and "storage fees" as the price
of its return.

  Hopping mad, Johnson called the police--
who took the Clinic’s side. They refused
to prosecute the Clinic or any of its
employees, refused to accept Johnson’s
written complaint, and, to top it off,
forbade the Clinic to return Johnson’s
car. After the Clinic’s owner came to
doubt his legal authority to retain the
car, and offered to hand it back to
Johnson pending judicial resolution of
the dispute about the bill, Officer Susan
Trigourea told Johnson that he could not
remove his car from the Clinic’s
premises. With the support of her
superior, Sergeant Clarence Fulce,
Trigourea told both Johnson and the
Clinic that the police department was
itself taking custody of the car, which
it would leave with the Clinic for
safekeeping. Trigourea and Fulce also
prohibited Johnson from removing his
belongings from the car, even though the
Clinic could not possibly have a lien on
the baby stroller, work uniforms, and
military documents in the vehicle. There
matters have stood since July 2000: the
Clinic holds the car as the agent of the
Evanston Police Department.

  So, at least, the complaint in this
action under 42 U.S.C. sec. 1983 contends,
and we must assume that all of its
allegations are factual. The City, the
Clinic, and both officers are named as
defendants, and Johnson wants his car
back plus damages for loss of its use.
But the district court dismissed the
complaint under Fed. R. Civ. P. 12(b)(6).
The only analysis in the court’s order
reads: "[E]ven if [the police] in fact
seized the car, they seized it from [the
Clinic], not from [Johnson]. Plaintiff
has failed to state a Federal cause of
action against any of the Defendants."
The court added that the amount in
controversy is less than $75,000 so that
federal jurisdiction is lacking--though
there is no amount-in-controversy
requirement for litigation under sec.1983
(see 28 U.S.C. secs. 1331, 1343(a)(3))
and Johnson did not seek to invoke the
diversity jurisdiction. Whether any
state-law claims come within the
supplemental jurisdiction under 28 U.S.C.
sec. 1367 is a subject we need not
address, for on appeal Johnson has
abandoned his claim against the Clinic.
The only question now on the table is
whether the complaint states a claim
under sec.1983 against the City and the
two officers--which it does.

  Johnson alleges that the police have
seized his property without probable
cause, indeed without a scintilla of jus
tification. That someone else had stolen
his property before the police glommed
onto it hardly justifies its perpetual
loss. If the police were using the car as
evidence in a prosecution of whoever
stole it (or to prosecute the Clinic for
being the recipient of stolen property),
then Johnson might have to wait a while.
But if the facts are as the complaint
alleges, then the police have simply
replaced the thief as the holder of
stolen property, without any colorable
claim of authority, and thus have
violated Johnson’s rights--by seizing his
property unreasonably, and by retaining
it without due process of law. The police
do not contend that Johnson has a remedy
under state law, for the state courts
might supply whatever process is due for
wrongful detention of property. See Lujan
v. G&G Fire Sprinklers, Inc., No. 00-152
(U.S. Apr. 17, 2001); Parratt v. Taylor,
451 U.S. 527 (1981). Instead the police
and the City contend that Johnson has no
remedy, period. That just makes Johnson’s
constitutional point. The Constitution’s
requirements are as applicable to the
police when they choose sides in a
dispute among citizens as when they seize
evidence for use in criminal
prosecutions. See, e.g., Soldal v. Cook
County, 506 U.S. 56 (1992); Guzell v.
Hiller, 223 F.3d 518 (7th Cir. 2000).

  Many steps in Johnson’s narration entail
no federal claim. For example, the
Clinic’s acquisition of his car from the
public streets may violate Illinois law,
but the Clinic did not act under color of
state law and so cannot be liable for
this deed under sec.1983. See Flagg
Bros., Inc. v. Brooks, 436 U.S. 149
(1978). The police are state actors
(everything they did or did not do was
official business), but Johnson lacks
standing to complain about their refusal
to prosecute the Clinic. See Linda R.S.
v. Richard D., 410 U.S. 614 (1973); Leeke
v. Timmerman, 454 U.S. 83 (1981); Allen
v. Wright, 468 U.S. 737 (1984). More
generally, any failure by the police to
protect Johnson from the Clinic, perhaps
by ordering the Clinic to release his
car, raises issues under state rather
than federal law; as a rule, the
Constitution does not require states to
protect citizens from each other. See
DeShaney v. Winnebago County Department
of Social Services, 489 U.S. 189 (1989);
Archie v. Racine, 847 F.2d 1211 (7th Cir.
1988) (en banc). (Johnson does not
contend that the police gave him less
protection than persons of another race
or sex; to the contrary, he alleges that
the police implemented a policy of
Evanston to back up merchants’ claims
without regard to the facts.) According
to Johnson’s complaint, however, the
police did not remain passive; they
intervened and took control of his car.
That seizure had to be reasonable under
the fourth amendment, and a condition to
the exercise of continuing public
dominion over private property is the
offer of a hearing to determine who is in
the right.

  It is not dispositive that the police
seized the car from the Clinic rather
than Johnson. This would be plain enough
if the police had seized the swag from a
bank robber; they could not defeat a
claim by the bank for the return of its
money by observing that the thief laid
hands on the cash first. Likewise
Evanston’s police may not detain a person
indefinitely just because Chicago’s
police made the arrest and turned the
suspect over. Each day, indeed each hour,
of additional detention must be
reasonable, and within 48 hours of any
arrest the suspect is entitled to a
hearing to determine whether that
condition is satisfied. Riverside County
v. McLaughlin, 500 U.S. 44, 57 (1991);
Gerstein v. Pugh, 420 U.S. 103 (1975).
What is true of persons is true of
property too, although the timetable need
not be so abbreviated. Indefinite public
detention of funds can violate the
Constitution when it deprives the owner
of interest on the money. See Webb’s
Fabulous Pharmacies, Inc. v. Beckwith,
449 U.S. 155 (1980). Just as interest
represents the time value of money, so
the cost of alternative transportation
represents the time value of an
automobile. Deprived of his own car,
Johnson had to obtain transportation from
another source. The expense of doing
this, whether by renting a car or by
buying a new one (in the expectation of
reselling it when the first is returned),
is the value of the lost use, the
implicit rental value of the vehicle.
Evanston’s police force could deprive
Johnson of that value only if the
deprivation was reasonable at the outset
and process was available to test the
length of (and continued justification
for) the deprivation. So far as Johnson’s
complaint reveals, however, neither the
reasonableness requirement nor the due-
process requirement has been satisfied.

  Because Johnson alleges that the
officers carried out Evanston’s policy,
the City is not entitled to dismissal
under Monell v. New York Department of
Social Services, 436 U.S. 658 (1978). How
much of the claim can survive a motion
for summary judgment remains to be seen,
for discovery lies ahead. The judgment is
reversed, and the case is remanded for
further proceedings consistent with this
opinion.
