“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. 

Trump Judges Michael Brennan and Amy St. Eve affirmed a lower court decision that dismissed as a matter of law an invasion of privacy claim by an airplane pilot who, while sleeping in a pilot’s lounge at an airport, was awoken by two police officers who did not identify themselves and searched and arrested him. Dissenting judge Ilana Rovner noted that “no reasonable officer” would have acted that way, and would have given the pilot a chance to prove his claim.

At 4:30 a.m., pilot Eric Ericson was sleeping in the pilot’s lounge at the Rochelle Municipal Airport when he was awoken by Phillip Frankenberry and Aaron Rodabaugh. They demanded that he provide identification, but did not identify themselves as police officers. The just-awakened Ericson declined, and Frankenberry and Rodabaugh proceeded to arrest and search him, and sent him to jail, where he was detained until later that day. Charges against him were dismissed.

Ericson then sued the officers for invasion of privacy under the Fourth Amendment. The district court dismissed the case as a matter of law, and the case was appealed to the Seventh Circuit. In an unsigned opinion in Ericson v. Frankenberry, Judges Brennan and St. Eve affirmed the dismissal of the claim, arguing that the officers had probable cause to arrest Ericson for loitering.

Judge Rovner strongly dissented. Since a dismissal as a matter of law must assume that the facts alleged by a plaintiff are true, those facts made clear that Ericson was not “remain[ing] in any one place for no apparent purpose” and thus “loitering,” but was sleeping late at night in a pilot’s lounge, as pilots sometimes do. In addition, she pointed out, the Rochelle loitering ordinance was virtually identical to a Chicago ordinance that had been struck down as unconstitutional “twenty years before these officers arrested Ericson.”

Although the majority argued that Ericson (who represented himself in the lower court) had not raised this argument, Rovner responded that the fact that “the unrepresented plaintiff failed to apprehend the importance of this point does not mean that we are similarly constrained.” On the contrary, she explained, the court “should not countenance an arrest made for a non-existent crime and we should certainly not do so on a motion to dismiss.” But that is exactly what Brennan and St.Eve did, depriving Ericson of the ability to try to prove his invasion of privacy claim.