3371 Joseph Peery v. Chicago Housing Authority

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 14-3369, -3371
JOSEPH P EERY , et al.,
Plaintiffs-Appellants,
v.
C HICAGO HOUSING A UTHORITY , et al.,
Defendants-Appellees.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
Nos. 13 C 5819, 6541 — Sharon Johnson Coleman, Judge.
____________________
A RGUED J UNE 2, 2015 — DECIDED J ULY 1, 2015
____________________
Before POSNER , EASTERBROOK, and S YKES, Circuit Judges.
POSNER , Circuit Judge. The plaintiffs, five residents of
buildings in Chicago that are privately owned, received
housing vouchers from the Chicago Housing Authority to
enable them to rent apartments in these buildings. Their suit,
which names as defendants the CHA plus two building
owners, complains that the Authority is complicit in—
indeed ultimately responsible for—a deprivation by the
building owners of the plaintiffs’ constitutionally protected

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2 Nos. 14-3369, -3371
privacy. The plaintiffs sought and were denied a preliminary
injunction in the district court, and they appeal the denial to
us.
The defendant building owners require their tenants to
be tested annually for illegal drugs; passing the test is a con-
dition of a tenant’s being allowed to renew his or her lease
for another year. The requirement applies to all tenants, not
just those who might be suspected of using illegal drugs. If
as the defendants argue the owners are alone responsible for
the testing requirement, there is no constitutional violation,
because the owners are private citizens rather than employ-
ees of the state or city. As the Supreme Court explained in
Blum v. Yaretsky, 457 U.S. 991, 1004 (1982), “constitutional
standards are [applicable] only when it can be said that the
State is responsible for the specific conduct of which the
plaintiff complains. The importance of this assurance is evi-
dent when, as in this case, the complaining party seeks to
hold the State liable for the actions of private parties. … [A]
State normally can be held responsible for a private decision
only when it has exercised coercive power or has provided
such significant encouragement, either overt or covert, that
the choice must in law be deemed to be that of the State.” If,
however, the CHA, a government agency, is responsible for
the compulsory drug testing of which the tenants complain
(we’ll assume that shared responsibility would be enough),
then unless all the tenants have consented to the tests, the
agency would have to justify its drug-testing policy as “rea-
sonable” within the current meaning of the Fourth Amend-
ment, made applicable to state agencies, such as the CHA,
by interpretation of the due process clause of the Fourteenth
Amendment. See Board of Education v. Earls, 536 U.S. 822

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Nos. 14-3369, -3371 3
(2002); Skinner v. Railway Labor Executives’ Association, 489
U.S. 602 (1989).
The district court denied the plaintiffs’ motion for a pre-
liminary injunction on the ground that the drug-testing poli-
cy was private rather than state action and therefore beyond
the reach of the Fourth Amendment. The court denied the
plaintiffs’ motion on a second ground as well—that they had
consented to the testing—but we need not reach that issue
and will express no view on it.
A number of the tenants in the buildings are former resi-
dents of public housing owned by the CHA. Beginning in
2000 the CHA began implementing a “Plan for Transfor-
mation” of its public housing developments. The Plan con-
templated replacing a number of housing developments that
the CHA owned with privately owned, mixed-income de-
velopments. Residents who had previously lived in CHA-
owned units could apply for admission to one of the new
developments, or they could apply for a voucher usable to
obtain housing in privately owned buildings not involved in
the transformation. The CHA would continue to subsidize
the rents of tenants relocating to these buildings from tradi-
tional public housing.
Each of the new developments is overseen by a “working
group” that controls, among other things, the criteria for
admission to the development. The CHA appoints one rep-
resentative to each of these working groups, but does not
control them. The agency does not require the building
owners to institute annual (or any) mandatory drug tests for
residents. Nor does it yank housing vouchers from residents
who flunk such a test. Nor do the working groups do any of
those things. Although a number of the buildings in the re-

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4 Nos. 14-3369, -3371
development program do require such tests, others do not,
and as a result only a slight majority (56 percent) of the ten-
ants in the entire array of buildings are required to take
them.
People eligible for subsidized housing in buildings in the
transformation program have some, though limited, choice
about whether to become tenants of a building that does, or
a building that does not, require such tests. Their choice is
necessarily limited because vacancies are limited. Many of
the buildings have lengthy waiting lists, and in some build-
ings the lists are closed. CHA, “Find Public Housing: Your
Search for ‘Closed’ Returned 58 Properties,” www.
thecha.org/residents/public-housing/find-public-housing/?w
ls=0 (visited June 29, 2015).
The CHA does not disapprove of drug testing in the
mixed-income developments; indeed there is at least some
evidence that it thinks it a good idea (as do some tenants,
who prefer living in buildings that require the tests; presum-
ably they are persons who neither use illegal drugs them-
selves nor wish to live in the same building with people who
do). But the plaintiffs are mistaken to equate governmental
encouragement of private “searches” (the drug tests are
searches within the judicially construed meaning of the
Fourth Amendment) with the government’s conducting
searches. Government officials and agencies spend a great
deal of time urging private persons and firms and other in-
stitutions to change their behavior (for example, to adopt
healthier diets or use public transit more) without backing
up their urging with coercion or the threat of it. Physically fit
young men and women are encouraged to enlist in the
armed forces, but there is no longer a draft, and so there is

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Nos. 14-3369, -3371 5
no coercion to enlist and it would be absurd to claim that en-
couraging enlistment is the equivalent of forcing people to
serve. A President will sometimes ask people to pray for
something, but his request is not compulsion either. We not-
ed in Freedom from Religion Foundation, Inc. v. Obama, 641 F.3d
803 (7th Cir. 2011), that since people are free to ignore the
President’s call for prayer, no one had standing to sue him
for violating the Constitution by forcing religion down peo-
ple’s throats.
Drugs are a plague on the poor in Chicago, and it is cer-
tainly permissible for the organ of city government that is
responsible for the living conditions of the City’s poor to
urge private measures to reduce addiction to those drugs
and reduce the commerce in those drugs that fosters and
feeds the addiction; but again, urging is not requiring.
The plaintiffs argue that the “working groups have never
acted over CHA opposition.” But the working groups do not
require drug testing; and since so many of the buildings at
issue do not require such tests, it follows that the CHA is not
coercing building owners to require testing. The plaintiffs do
not explain why, if the CHA requires drug testing in some
buildings, it doesn’t in others; and this is evidence that the
decision whether to require the testing is indeed left to the
building owners rather than imposed on them by govern-
ment. Further evidence is that one of the two building own-
ers that are defendants in this case along with the CHA—
namely Holsten Management Corporation—instituted drug
testing in its buildings in the mid-1990s, years before it had
any involvement with the CHA, and it continues to require
drug testing in buildings that it owns that have no involve-
ment with the agency.

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6 Nos. 14-3369, -3371
It’s true that the owner of one mixed-income develop-
ment declared that it was imposing a requirement of drug
testing at the request of the CHA. It said it had “never im-
posed a drug testing requirement at any of our properties;
we believe that we have created and maintained good places
to live without drug testing policies. However, we are in-
cluding one here … because the CHA and members of the
community have told us to do so.” (The “members of the
community” would be members of the development’s work-
ing group, which has to approve a building owner’s tenant-
selection plan.)
But request and command are not synonyms. As we said,
government does a lot of urging without backing it up by
force of law. The plaintiffs have failed to show that either
“members of the community” or the CHA commanded the
building owner to require drug testing. By “told us to do so”
the owner may simply have been saying—to whoever ques-
tioned the decision to institute drug testing—“don’t blame
us, we’re just doing what we’ve been told to do.”
Finally, as the district court emphasized, none of the
plaintiffs had requested transfer from the drug-testing build-
ing in which he or she currently resides to a building that
does not require drug testing. The plaintiffs argue that it
would have been futile for them to seek transfer, noting that
a CHA employee had in 2009 emailed an employee of the
federal Department of Housing and Urban Development
that a resident who refused to take a drug test would not be
eligible for transfer to another building. But a representative
of the CHA testified that his agency would have approved
such a request, and the district judge credited this represen-

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Nos. 14-3369, -3371 7
tation in denying the plaintiffs’ motion for a preliminary in-
junction.
The motion was properly denied.
A FFIRMED.

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