A federal appeals panel agreed a federal judge in Chicago properly dismissed a lawsuit from a black business owner who alleged the city of Berwyn didn’t adequately discipline a municipal inspector accused of using racial slurs.
Phillip Robbin, who owns Eagle Eye Tree Services, sued the city over a May 2022 incident that happened while he was at work removing a tree from a residential property. He alleged Berwyn blight inspector Sarah Lopez, upset Robbin’s truck was blocking an alley, berated him with profanities and racial slurs. Robbin said Berwyn officials rejected his Freedom of Information Act request for a police report on the incident and took no action on his demand to have Lopez disciplined beyond a verbal reprimand.
Lopez ultimately resigned, although Mayor Robert Lovero issued a statement claiming he fired her. Robbin sued, alleging the events deprived him of his 14th Amendment due process rights, claimed violation of the Illinois Hate Crime Statute and intentional infliction of emotional distress.
U.S. District Judge Ronald Guzmán dismissed the complaint, finding Robbin didn’t adequately allege a rights violation against Berwyn or conduct that shocked the conscience, while declining to exercise supplemental jurisdiction of the state law claims.
Robbin challenged that ruling before the U.S. Seventh Circuit Court of Appeals. Judge John Lee wrote the panel’s opinion, filed July 18; Judges Amy St. Eve and Thomas Kirsch concurred.
“Robbin hits an early stumbling block,” Lee wrote, agreeing with Judge Guzmán’s assertion the “complaint fails to allege the violation of a fundamental right.” The panel said Robbin’s lawsuit “seeks to add to” the exclusive list of protected rights by including a “right of ‘free passage’ — to go about his business with dignity and autonomy, to carry out his trade unmolested, to travel locally through public spaces, and to be free of harassment and race-based attacks.”
Lee said Robbin cited William Blackstone’s famed “Commentaries on the Laws of England” along with “a variety of Supreme Court dicta to suggest the existence of a generalized right of free movement,” but those arguments fell short first because of an established understanding those sources do not support the fundamental right he asserted and second because Robbin’s claim doesn’t raise the notion of “imprisonment or restraint” but whether he could move about free of harassment.
The panel said the Seventh Circuit itself has established defamation doesn’t deprive liberty as the due process clause defines, nor do racial slurs.
“The use of racial epithets is certainly deplorable,” Lee wrote, “but substantive due process does not protect an individual from facing mere verbal harassment (race-based or otherwise) in public spaces.”
To reach the level of “shocking enough to sustain a due process claim,” Lee continued, alleged behavior typically would involve the use or threat of intentional force. The panel branded Lopez’s alleged remarks as “mere verbal harassment, threats or annoyances” that don’t meet the legal bar to sustain Robbin’s claims.
“Lopez’s use of racial epithets was certainly despicable,” Lee concluded, “and the city’s refusal to take immediate action perhaps regrettable, but even taken together, the conduct that forms the basis of Robbin’s … claim is verbal harassment, however loathsome. It falls far short of the grievous conduct necessary to support a substantive due process claim.”
Robbin is represented by attorney Jamie S. Franklin, of the Law Offices of Chicago Kent, of Chicago.
Franklin said his group has filed a new Cook County Circuit Court lawsuit on Robbin's behalf, alleging violations of the Illinois Human Rights Act's public accommodations provisions, which is proceeding in discovery.
Berwyn did not respond to a request for comment.