Seventh Circuit Court of Appeals Commentary : In Their Opinion : Lawyer & Attorney Michael E. Rigney : Kelley Drye & Warren Law Firm

BOGAN v. CITY OF CHICAGO (July 6, 2011)

Nicole Evans's eight-year-old son called 911 at about 2:30 a.m. to report that his mother was being beaten. When officers arrived at her apartment, a male voice swore at them from inside. They then heard a woman scream and eventually found her on the roof. She was partially dressed, mentally distraught, and physically injured. She told the police that she wanted her boyfriend arrested. The police saw the boyfriend through an apartment window and went after him. He ran to the rear of the apartment and they followed, searching every room. Other officers had arrived at the building and advised that an African-American male was on the rear porch. The officers arrived at a door which they assumed was a door to the porch. They tried to kick it in but Sharon Bogan opened the door from the inside. She identified the boyfriend as her son. Chicago police searched the apartment but did not find boyfriend. Bogan brought suit against the City of Chicago and the officers under § 1983. She alleged a Fourth Amendment violation. A jury returned a verdict for the defendants. Judge Kennelly (N.D. Ill.) denied her motion for judgment as a matter of law. Bogan appeals.

In their opinion, Circuit Judges Ripple and Hamilton and District Judge Murphy affirmed. The Court first addressed Bogan's claim that the exigent circumstances instruction was error. The district court instructed the jury that Bogan had to prove that a reasonable officer would not have believed that a crime suspect was in the apartment. The Court noted that it had never addressed that precise question. It had, however, addressed the burden of proof question with respect to consent. In Valance, the Court concluded that a defendant asserting a consent exception to a warrantless search claim has the burden of coming forward with evidence but the plaintiff still has the ultimate burden of persuasion. The Court concluded that its rationale there also applied to the exigent circumstances exception as well. The Court acknowledged that there is a split in the circuits on the question, but countered that the split has existed for some time. The Court next addressed Bogan's argument that it was error to allow one of the officers to testify regarding his subjective beliefs during the search of Evans’s apartment. The Court recognized that the exigent circumstances exception cannot be satisfied with a police officer’s subjective view. Instead, the factfinder views the totality of the circumstances as they would have appeared to a reasonable person in the officer’s position. Here, the officer's testimony simply explained his progress and decisions made during this search. The information could have been helpful to a jury in assessing the reasonableness of his actions. Finally, the Court found no error in the district court's rejection of Bogan's request for judgment as a matter of law. There was sufficient evidence in the record from which a jury could conclude that the officers reasonably believed the boyfriend was in the apartment.

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 RIVER OF LIFE KINGDOM MINISTRIES v. HAZEL CREST (July 2, 2010)

The Village of Hazel Crest refused to allow the River of Life Kingdom Ministries ("Ministries") to locate its church in a commercial area of the village. Ministries had a very small congregation and hoped to relocate its facilities from a dirty warehouse in Chicago Heights to Hazel Crest. The area in which it wanted to locate was designated a commercial district under the village's zoning ordinance. New noncommercial uses were excluded from the district under the ordinance. Judge Gottschall (N.D. Ill.) denied the Ministries' request for a preliminary injunction under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). On October 27, 2009, a panel of the Seventh Circuit affirmed (the intheiropinion post). On petition by Ministries, the Court granted rehearing en banc.

In their opinion, the entire court affirmed, with Judges Manion, Cudahy, Rover, and Williams concurring and Judge Sykes dissenting. The "equal-terms" provision of RLUIPA prohibits a local government from instituting a land-use regulation that treats a religious institution "on less than equal terms with" a nonreligious institution. The Court addressed two different tests - one from the Third Circuit and one from the Eleventh. The Third Circuit approach is to identify a) the ordinance’s goals and b) the nonreligious assemblies comparable to the religious assembly at issue. The ordinance is consistent with the equal terms provision if the reasons for excluding a nonreligious assembly are applicable to the religious assembly. The Eleventh Circuit approaches the equal terms provision more literally. An ordinance that permits a nonreligious assembly must permit a religious assembly. The Eleventh Circuit test does include an exception -- unequal treatment could survive if it passed a "strict scrutiny" test. Although the panel had adopted the Third Circuit approach, the en banc court rejected both approaches. The Court believed the Eleventh Circuit’s approach was overprotective of religious groups (due, in large part, to the dictionary definition of "assembly") and that the "strict scrutiny" exception had no basis in the statute. With respect to the Third Circuit's test, its focus on the regulatory purpose of the zoning regulation was problematic to the Court. Instead, the Court adopted a variation of the Third Circuit test. It replaced the "subjective and manipulable" regulatory purpose test with an "objective" zoning criteria test. The zoning criteria used by Hazel Crest include setting aside land for commercial uses in order to generate tax revenue and to provide a convenient shopping area. When it created the district, it not only excluded churches but also excluded other nonreligious assemblies that did not offer opportunities for shopping or generate tax remedy. The Court concluded that Hazel Crest's adoption of an acceptable zoning criterion -- commercial district -- and its neutral application of the regulation demonstrated that Ministries was unlikely to prevail on the merits. It thus affirmed the district court's denial of the motion for a preliminary injunction.

Judge Cudahy concurred. He wrote separately to express his view that there was little difference in the Third Circuit’s “regulatory purpose” test and the Court’s “zoning criterion” test.

Judge Manion concurred. He wrote separately to express his view that the case was rather straight forward and that the en banc court's opinion unnecessarily crafted a test to apply to more difficult cases. He also took issue with the opinion's discussion of a complicated Establishment Clause issue.

Judge Williams concurred (joined by Judges Cudahy and Rovner). Judge Williams expressed her belief that the Third Circuit's "regulatory purpose" test adopted by the panel is the proper test.

Judge Sykes dissented. She explored in detail the history of RLUIPA as well as the text of the statute, not limited to the "equal terms" provision. She also laid out the history of the "equal terms" jurisprudence in the Third, Eleventh, and Seventh Circuits. She noted that the Seventh Circuit had approved of the Eleventh Circuit approach until the panel opinion in this case. In her view, the plain language of RLUIPA prohibits any zoning regulation that treats a religious assembly on less than equal terms with a non-religious one. It contains no requirement of discriminatory motive or bias. Judge Sykes concluded that the Ministries demonstrated a likelihood of success -- the zoning regulation's allowance of gymnasiums, health clubs, and day care centers in the district where the church is not allowed is sufficient to show unequal terms.

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